Blanche Barber v. Charter Twp. of Springfield, Mich. ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0070p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
BLANCHE BARBER, individually, and a class of
│
similarly situated individuals,
│
Plaintiff-Appellant, │
> No. 20-2297
│
v. │
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CHARTER TOWNSHIP OF SPRINGFIELD, MICHIGAN; │
CHARTER TOWNSHIP OF SPRINGFIELD, MICHIGAN │
PARKS AND RECREATION; OAKLAND COUNTY, │
MICHIGAN; OAKLAND COUNTY PARKS AND │
RECREATION COMMISSION, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:19-cv-13519—Nancy G. Edmunds, District Judge.
Argued: December 9, 2021
Decided and Filed: April 11, 2022
Before: MOORE, CLAY, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Ann Marie Pervan, KELLER & AVADENKA, P.C., Bloomfield Hills, Michigan,
for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for
Springfield Township Appellees. Daniel A Klemptner, OAKLAND COUNTY, Pontiac,
Michigan, for Oakland County Appellees. ON BRIEF: Ann Marie Pervan, KELLER &
AVADENKA, P.C., Bloomfield Hills, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT
COONEY, Bloomfield Hills, Michigan, for Springfield Township Appellees. Daniel A
Klemptner, OAKLAND COUNTY, Pontiac, Michigan, for Oakland County Appellees.
CLAY, J., delivered the opinion of the court in which MOORE, J., joined. READLER, J.
(pp. 14–17), delivered a separate dissenting opinion.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Blanche Barber seeks a preliminary injunction against
Defendants Charter Township of Springfield (the “Township”), Oakland County (the “County”),
and both the Township and the County’s Parks and Recreation departments (collectively,
“Defendants”), to prevent Defendants from removing a dam near Barber’s property. Barber
alleges that Defendants’ plan to remove the dam amounts to an unconstitutional taking and a
trespass. Defendants filed a motion for judgment on the pleadings, which the district court
granted. Barber now appeals. For the reasons set forth below, we REVERSE the district court’s
order and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
Barber owns land “directly adjacent” to Mill Pond and the Mill Pond Dam (the “Dam”)
in Springfield Township, Michigan. (Am. Compl., R. 12, Page ID #130.) A land survey showed
that parts of her property “run directly into the Mill Pond” and include parts of the pond itself.
(Id. at Page ID #144.) The Dam was built in 1836, and Barber’s home was built several years
later. Today, the Township and the County are jointly responsible for maintaining the Dam. In
October 2018, Oakland County Parks and Recreation conducted a Feasibility Study to determine
the future of the Dam. That study gave Defendants seven options: four required upgrading or
repairing the Dam and three involved removing the Dam. On June 6, 2019, members of the
Springfield Township Board (“the Board”) met to discuss these options and ultimately
recommended removing the Dam.
After this meeting, Defendants “agreed to remove” the Dam and entered into “Phase II –
Mill Pond Dam Removal and Restoration Design/Engineering Services.” (Id. at Page ID #130.)
During this phase, Defendants hired engineering firms and allocated parts of the annual budget to
the project. On February 14, 2020, the Township released a statement on its website saying that,
“the project has moved to the next phase which includes preliminary engineering and conceptual
park design.” (Id. at Page ID #136–37.) On appeal, Barber points to a local newspaper article
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 3
titled “Mill Pond Dam to be Removed Next Year,” that ran on March 6, 2021. (Dkt. No. 20,
Exh. A (hereinafter “Newspaper Article”).) The article reported that the Dam removal project
was “scheduled to begin in 2022.” (Id.) At oral argument, defense counsel admitted that
Defendants have decided to remove the Dam and plan to break ground on the demolition this
spring.
Barber alleges that removing the Dam will decrease her property value, interfere with her
riparian rights, deprive her of her right to use and enjoy her land, and physically damage her
property. She alleges that it “will likely pollute, impair and destroy natural resources,
including . . . surface water, wetlands, and wildlife and natural habitat.” (Am. Compl., R. 12,
Page ID #132–33.) Further, removing the Dam “may cause flooding and property damage to
Plaintiff’s residence.” (Id.) She goes on to list other effects, alleging that it would: increase
pedestrian traffic around her property; increase noise and waste levels; eliminate fishing on the
Mill Pond and disturb the fish community; create a nuisance to adjacent property owners;
significantly decrease her property value; create “an area of swamp and stink;” destroy natural
habitats; threaten endangered species in the area; lower the water table and drain the surrounding
wetlands; increase pollution in the water; and affect septic systems. (Id. at Page ID #138–39.)
Barber sued Defendants on October 28, 2019 in state court, and the case was removed to
federal court on November 27, 2019. See Barber v. Charter Twp. of Springfield, No. 19-13519,
2020 WL 7122073, at *2 (E.D. Mich. Dec. 3, 2020). She sought to enjoin the Dam-removal
project, alleging that it would constitute a taking under the federal and Michigan constitutions
and a trespass under Michigan law. After the suit was removed to federal court and Barber
amended her complaint, Defendants filed a motion for judgment on the pleadings. See id. The
district court granted Defendants’ motion, finding that Barber’s claims were not ripe and that she
lacked standing to bring suit. Id. at *3–*6. The district court failed to address Defendants’
remaining arguments, namely that Barber’s amended complaint did not state plausible facts to
support her takings claim. See id. Nor did the court reach the merits of Barber’s request for a
preliminary injunction. See id.No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 4
II. DISCUSSION
A. Jurisdiction
Barber brought a claim under 42 U.S.C. § 1983 alleging that Defendants violated her
Fifth Amendment rights. Therefore, the district court had federal question jurisdiction under 28
U.S.C. § 1343(a)(1). See Sexton v. Cernuto, 18 F.4th 177, 183 (6th Cir. 2021). This Court has
appellate jurisdiction because Barber timely appealed from a final order dismissing her case. See
id. § 1291; Fed. R. App. P. 4.
B. Standard of Review
“We review de novo a district court’s grant of a Rule 12(c) motion for judgment on the
pleadings.” Engler v. Arnold, 862 F.3d 571, 574 (6th Cir. 2017) (citing Kottmyer v. Maas, 436
F.3d 684, 689 (6th Cir. 2006)). Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the
pleadings are closed—but early enough not to delay trial—a party may move for judgment on
the pleadings.” We assess a Rule 12(c) motion “using the same standard that applies to a review
of a motion to dismiss under Rule 12(b)(6).” Moderwell v. Cuyahoga Cnty., 997 F.3d 653, 659
(6th Cir. 2021) (quoting Moore v. Hiram Twp., 988 F.3d 353, 357 (6th Cir. 2021)). Thus, “[t]o
survive a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Engler, 862 F.3d at 575 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted). “When ruling
on a defendant’s motion to dismiss on the pleadings, a district court ‘must construe the complaint
in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as
true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his
claim that would entitle him to relief.’” Id. at 574–75 (citing Kottmyer, 436 F.3d at 689). “But
we ‘need not accept as true legal conclusions or unwarranted factual inferences.’” Moderwell,
997 F.3d at 659 (quoting Jackson v. Prof’l Radiology Inc., 864 F.3d 463, 466 (6th Cir. 2017)).
C. Analysis
Barber claims that Defendants’ decision to remove the Dam—and the Dam’s eventual
destruction—amounts to an unconstitutional taking of her property without just compensation in
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 5
violation of the Fifth Amendment.1 The Takings Clause of the Fifth Amendment, applicable to
the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken
for public use, without just compensation.” Cedar Point Nursery v. Hassid, 141 S. Ct. 2063,
2071 (2021) (quoting U.S. Const. amend. V). The Fifth Amendment prohibits both “physical
takings” and “regulatory takings.” Id. at 2071–72. Physical takings include when the
government “uses its power of eminent domain to formally condemn property,” “physically
takes possession of property without acquiring title to it,” or “occupies property.” Id. at 2071.
This third type of physical taking, occupation, can occur “say, by recurring flooding as a result of
building a dam.” Id. (citing United States v. Cress, 243 U.S. 316, 327–28 (1917)).
The regulatory takings jurisprudence recognizes that the Fifth Amendment is “not limited
to physical appropriations of property.” Id. (citing Horne v. Dep’t of Agric., 576 U.S. 350, 360
(2015)). Thus, if a “regulation goes too far it will be recognized as a taking.” Id. at 2072
(quoting Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). The regulatory takings doctrine
developed primarily in the context of land-use restrictions such as zoning ordinances. See id.Although quite different, the doctrines for physical takings and regulatory takings can overlap.
In Cedar Point Nursery, the Supreme Court found that a regulation allowing union workers to
enter agricultural workplaces was a per se physical taking. Id. at 2069, 2080. Accordingly,
“[g]overnment action that physically appropriates property is no less a physical taking because it
arises from a regulation.” Id. at 2072. Barber raises both claims. She alleges that the decision to
remove the Dam amounted to a regulatory taking and its eventual removal will exact a physical
taking.
The district court did not reach the merits of her claims. Rather, it found that it lacked the
power to hear her claims. See Barber, 2020 WL 7122073 at *4–*5. Therefore, this Court
reviews only whether her claims are justiciable, not whether her claims will otherwise succeed
1
In her Amended Complaint, Barber also brought state law claims including a takings claim under the
Michigan Constitution and a state law trespass claim. On appeal, she only challenges the district court’s findings as
to her Fifth Amendment takings claims. Thus, she has abandoned her state law claims on appeal, and the Court will
not address them. See United States v. Melton, 782 F.3d 306, 308 n.1 (6th Cir. 2015) (citing Rose v. State Farm Fire
& Cas. Co., 766 F.3d 532, 540 (6th Cir. 2014)).
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 6
on the merits.2 “Article III of the Constitution confines the federal courts to adjudicating actual
‘cases’ and ‘controversies.’” Wayside Church v. Van Buren Cnty., 847 F.3d 812, 816 (6th Cir.
2017) abrogated on other grounds by Knick v. Twp. of Scott, 139 S. Ct. 2162, 2167–68 (2019)
(quoting Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)). Two Article III
doctrines are in issue here. First, federal courts may only hear claims that are ripe for review;
second, a plaintiff must have standing to bring her claims.
1. Ripeness
The “basic rationale” of the ripeness doctrine “is to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract disagreements over
[governmental] policies, and also to protect the [governmental entity] from judicial interference
until a[] . . . decision has been formalized and its effects felt in a concrete way by the challenging
parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967) abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977). A takings claim is ripe if “the plaintiff has
received a ‘final decision’ from the relevant government actor” indicating how it will regulate or
use the property. Wilkins v. Daniels, 744 F.3d 409, 417 (6th Cir. 2014) (citing Williamson Cnty.
Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985), overruled on other
grounds by Knick, 139 S. Ct. 2162). “The finality requirement is relatively modest.” Pakdel v.
City & Cnty. of San Francisco, 141 S. Ct. 2226, 2230 (2021). Indeed, “nothing more than de
facto finality is necessary.” Id. Although this Court “appl[ies] this test to both regulatory and
physical takings claims,” Wilkins, 744 F.3d at 417 (citing Hensley v. City of Columbus, 557 F.3d
693, 696 n.2 (6th Cir. 2009)), courts have further sculpted the ripeness doctrine to fit the type of
takings claim involved.
2
Had the district court found that Barber’s claims were justiciable, it would have needed to consider
Barber’s request for a preliminary injunction. To determine whether a plaintiff is entitled to a preliminary
injunction, courts must weigh four factors: “(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction
would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the
injunction.” Lexington H-L Servs., Inc. v. Lexington-Fayette Urban Cnty. Gov’t, 879 F.3d 224, 235–36 (6th Cir.
2018) (quoting City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)). In
this case, the first factor—likelihood of success on the merits—would consider the strength of Barber’s Fifth
Amendment takings claim.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 7
Ordinarily, “[w]ith a ‘physical taking,’ the taking itself is viewed as a final action
because, once the property’s value has been allegedly destroyed, there is nothing else to do.”
Hensley, 557 F.3d at 696 (citing Coles v. Granville, 448 F.3d 853, 862 (6th Cir. 2006)). This
rule logically applies when the plaintiff seeks monetary damages, but it cannot apply when the
plaintiff seeks injunctive relief. Until recently, the Supreme Court expressed skepticism that a
takings claim for injunctive relief would ever be ripe. See Knick, 139 S. Ct. at 2175, 2179.
However, last year the Court found that an impending physical taking could warrant injunctive
relief. See Cedar Point Nursery, 141 S. Ct. at 2070, 2072. In Cedar Point Nursery, the plaintiffs
sought to enjoin a local regulation that allowed union representatives to enter private property
and speak to agricultural workers. Id. at 2070. The Court, treating the claim as a per se physical
taking, allowed the plaintiffs to proceed with their motion for a preliminary injunction even
though union representatives had never set foot on one plaintiff’s property. See id. Thus, the
plaintiffs could bring suit even without experiencing a physical intrusion because the regulation
allowed future physical intrusions. See id. at 2070, 2072–73. Accordingly, a claim for
injunctive relief is ripe if the government has reached a final decision that will enable a future
physical taking.
Barber’s physical and regulatory takings claim arise out of the same conduct—
Defendants’ decision to remove the Dam. According to Barber, this decision amounts to a
regulatory taking and the inevitable demolition of the Dam will amount to a physical taking.
Under these circumstances, both claims are ripe if Defendants have “reached a final decision”
about the Dam’s future. Lilly Investments v. City of Rochester, 674 F. App’x 523, 526 (6th Cir.
2017) (quoting Williamson, 473 U.S. at 186); Wilkins, 744 F.3d at 417 (citing Hensley, 557 F.3d
693, 696 n.2).
Defendants have reached a final decision to remove the Dam. A March 2021 newspaper
article confirms as much, reporting that the Dam removal project is “scheduled to begin in
2022.” (Newspaper Article, Dkt. No. 20, Exh. A.)3 And at oral argument, when asked if
3
This article ran after the district court issued its decision. Thus, it was not a part of the record before that
court. Even so, “since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at
the time of the District Court’s decision that must govern.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 139
(1974). “Our inquiry must thus focus on whether [the plaintiff’s] claim is presently ripe, rather than on whether it
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 8
Defendants had decided to demolish the Dam, defense counsel stated that, “The choice has been
made to . . . move forward to remove the Dam.” (Oral Arg. at 31:15.) Having conceded this
point, Defendants are left with one argument; until the Dam is actually removed, there is no way
to know whether Barber has a viable takings claim. But this cannot be the case in the wake of
Cedar Point Nursery. As the Supreme Court made clear, plaintiffs may sue for injunctive relief
even before a physical taking has happened. Cedar Point Nursery, 141 S. Ct. at 2070, 2072–73.4
Barber’s claims are therefore ripe.
2. Standing
“For a dispute to qualify as an Article III ‘case [or controversy]’ that a federal court may
resolve, the plaintiff who brings the dispute to the court must have ‘standing.’” CHKRS, LLC v.
City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021) (quoting Buchholz v. Meyer Njus Tanick, PA,
946 F.3d 855, 860 (6th Cir. 2020)). “To satisfy Article III’s standing requirement, a plaintiff
must have suffered some actual or threatened injury due to the alleged illegal conduct of the
defendant; the injury must be ‘fairly traceable’ to the challenged action; and there must be a
substantial likelihood that the relief requested will redress or prevent the plaintiff’s injury.”
Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (quoting Valley Forge Christian
Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)). When
assessing standing, courts look only to “the facts existing when the complaint is filed.” Lujan v.
was ripe when the district court dismissed [the] complaint.” Syron v. ReliaStar Life Ins. Co., 506 F. App’x 500, 503
(6th Cir. 2012); see also Crosby v. Pickaway Cnty. Gen. Health Dist., 303 F. App’x 251, 260 (6th Cir. 2008)
(considering recent developments in a party’s related state litigation when relevant to the ripeness inquiry); Casden
v. Burns, 306 F. App’x 966, 971–73 (6th Cir. 2009) (recognizing that claims may “become ripe” as litigation
unfolds, and this Court may consider “intervening change[s] in circumstances”).
4
Much of the confusion in this case is because the parties, and the district court, merge their discussion of
merits questions with ripeness questions. Indeed, Defendants argue that “[t]he amended complaint comes nowhere
close to alleging that a taking has occurred.” (Def. Br. at 25.) The district court agreed. See Barber, 2020 WL
7122073, at *4 (“There are not sufficient factual allegations establishing that a taking of Plaintiff’s property has or
likely will occur.”). While the ripeness inquiry addresses unique issues in takings cases, courts must not use the
ripeness doctrine as an opportunity to prematurely reach thorny merits questions. For example, Defendants argue
that Barber has not shown a sufficient property interest under Michigan law, and Defendants focus heavily on other
questions that go to the merits: whether Barber can sue for injunctive relief to prevent a taking; whether she is
limited to seeking just compensation as a remedy after a taking; and whether her claims are best treated as a physical
taking or a regulatory taking. But these are not ripeness questions. We leave it to the district court to consider these
merits questions on remand.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 9
Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992); see also Price v. Medicaid Director, 838 F.3d
739, 746 (6th Cir. 2016) (quoting Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991)).
Defendants only challenge the first prong, known as the “injury in fact” requirement.5
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan, 504 U.S. at 560–61).
To satisfy this prong, a plaintiff must plausibly allege that she will suffer an injury that is
“concrete, particularized, and actual or imminent.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). That
does not mean that she must have already suffered an injury. See Clapper, 568 U.S. at 409.
Rather, “a person exposed to a risk of future harm may pursue forward-looking, injunctive relief
to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent
and substantial.” TransUnion, 141 S. Ct. at 2210 (citing Clapper, 568 U.S. at 414 n.5).
Barber claims that she will suffer several injuries when the Dam is removed. She alleges
that removing the Dam will, among other things: “cause flooding and property damage to
Plaintiff’s residence;” increase pedestrian traffic around her property; increase noise and waste
levels; create a nuisance to adjacent property owners; significantly decrease her property value;
“pollute, impair and destroy natural resources, including . . . surface water, wetlands, and
wildlife and natural habitat;” and lower the water table and drain the surrounding wetlands.
(Am. Compl., R. 12, Page ID #138–39.)
Defendants argue that these risks of future harm do not give her standing. To start, they
argue that “even if [the Dam] is removed, Plaintiff’s allegations are insufficient to support a
finding of an unconstitutional taking.” (Def. Br. at 31.) That may well be true, but—as with the
ripeness inquiry—courts must not “conflate[] the merits of [the plaintiff’s] takings claim with
[her] standing to bring it.” CHKRS, 984 F.3d at 489. “[J]ust because a plaintiff’s claim might
fail on the merits does not deprive the plaintiff of standing to assert it.” Id. (citing Trump v.
Hawaii, 138 S. Ct. 2392, 2416 (2018)). “If that were the test, every losing claim would be
5
For good reason. There is little doubt that the causation and redressability prongs are satisfied. As to
causation, Defendants jointly manage the Dam and, as discussed below, they decided to demolish it before this case
was removed to federal court. And the relief Barber seeks, an injunction barring Defendants from removing the
Dam, would prevent (and therefore redress) all of Barber’s claimed harms.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 10
dismissed for want of standing.” Id. (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d
1082, 1092 (10th Cir. 2006) (en banc)).6
Defendants next allege that the risk of harm that Barber faces is merely speculative and
unlikely to occur. When a plaintiff sues for injunctive relief, “[t]he threat of future harm can
satisfy this requirement as long as there is a ‘substantial risk’ that the harm will occur.”
Kanuszewski v. Mich. Dep’t of Health & Human Servs., 927 F.3d 396, 405 (6th Cir. 2019)
(quoting Clapper, 568 U.S. at 414 n.5). The “threatened injury must be certainly impending to
constitute injury in fact.” Clapper, 568 U.S. at 409 (emphasis in original) (quoting Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990)). In the leading Supreme Court case on this issue, the Court
found that the plaintiffs lacked standing to enjoin a government surveillance program because
the plaintiffs merely alleged that the government might intercept their future communications.
See id. at 410. In Clapper, the plaintiffs’ theory of harm relied “on a highly attenuated chain of
possibilities,” and therefore did not meet the “certainly impending” requirement. Id. Among
other things, the government would need to target the plaintiffs for surveillance, get approval
from a court to do so, and successfully intercept the plaintiffs’ communications. See id.
Unlike in Clapper, the chain between Defendants’ actions and Barber’s harm is hardly
attenuated. Defendants start by arguing that “[t]here has not been a final decision to remove the
Dam,” and, therefore, any injury deriving from the Dam’s removal is purely “speculative.” (Def.
Br. at 30–31 (emphasis in original).) Whether Defendants decided to remove the Dam is
certainly relevant to the standing inquiry; if Defendants were waffling between various options,
6
By speculating and engaging in conjecture about the magnitude of the harm that Barber will suffer, the
dissent prematurely adjudicates the merits of Barber’s claim. The dissent points out that Barber’s future harm
depends on “the success of [Defendants’] restoration efforts.” (Dissent at 15.) To start, Defendants have provided
no evidence of their plans to remediate the land after removing the Dam. By relying on these undisclosed
remediation efforts, the dissent blindly accepts Defendants’ assurances while dismissing the factual allegations in
the complaint.
Even if Defendants had disclosed their proposed remediation efforts, those after-the-fact plans are only
relevant when considering whether Barber is likely to suffer irreparable injury, one of the four preliminary
injunction factors. Lexington H-L Servs., Inc., 879 F.3d at 235–36 (quoting Schimmel, 751 F.3d at 430). But to
establish standing, Barber does not need to show that her future harm will be irreparable. See Ohio v. Becerra, No.
21-4235, 2022 WL 413680, at *3 (6th Cir. Feb. 8, 2022) (order). Barber has standing to seek injunctive relief
because she faces a “risk of harm [that] is sufficiently imminent and substantial.” TransUnion, 141 S. Ct. at 2210
(citing Clapper, 568 U.S. at 414 n.5). How Defendants plan to mitigate Barber’s risk of harm is a merits question
that the district court should consider when weighing the preliminary injunction factors.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 11
then Barber’s alleged harm would not be imminent. The relevant inquiry is whether Barber’s
alleged future harm was imminent at the time of her complaint. See Price, 838 F.3d at 746
(quoting Cnty. of Riverside, 500 U.S. at 51–52). Defendants have admitted that they planned to
remove the Dam in the near future. However, the question is whether they had made those plans
at the time Barber filed her complaint, and there is ample evidence that they had so decided.
Looking at the facts as they existed on November 27, 2019,7 Barber pleaded sufficient facts to
support the conclusion that Defendants decided to remove the Dam before Barber sued. On June
6, 2019, the Board met to discuss the Feasibility Study and assess its options for the Dam’s
future. After weighing seven proposals, the Board recommended removing the Dam. At the
close of this meeting, one town trustee said “that the Board came to a decision.” (Compl., Exh.
1, R. 1-2, Page ID #41.) Township residents who attended the meeting stated that, although the
Board was purportedly open to discussion, it seemed quite clear that “the Board ha[d] already
made a decision.” (Id. at Page ID #40.) The project then entered “Phase II – Mill Pond Dam
Removal and Restoration Design/Engineering Services.” (Am. Compl., R. 12, Page ID #130.)
By October 2019, Defendants had contracted with AECOM, an engineering firm, “for removal
and restoration design/engineering services.” (Id. at Page ID #136.) A change order to this
contract, dated October 15, 2019, budgeted up to $168,530 for AECOM’s “preliminary Design
Engineering, Grant Writing Assistance, and Conceptual Park Design.” (Id.) On November 14,
2019, the Board again moved to increase the contract with AECOM. As the Township Clerk
noted in the June 6 meeting, “it would not be the intent to go into the next phase and engineer
more than one alternative.” (Compl., Exh. 1, R. 1-2, Page ID #36.) A Township Treasurer
7
There is some room for debate over the operative date for standing purposes in this case. Barber filed her
original complaint in state court on October 28, 2019. But the case was removed to federal court on November 27,
2019. This Court has not clarified whether the state court filing date or the date of removal to federal court is the
date to consider when analyzing standing. Lower courts have concluded that the removal date governs. See
Renteria-Villegas v. Metro. Gov’t of Nashville & Davidson Cnty., 796 F. Supp. 2d 900, 905 (M.D. Tenn. 2011);
Kelley v. Shelby Cnty. Bd. of Educ., 198 F. Supp. 3d 842, 849 (W.D. Tenn. 2016). We agree. Standing is a question
of Article III jurisdiction. See CHKRS, LLC, 984 F.3d at 488. It logically follows that standing should be
determined as of the date that the federal court assumed Article III jurisdiction, i.e., the date of removal.
There is one further issue as to the operative date. Barber amended her complaint in federal court in
February 2020. However, this Court looks to the plaintiff’s original complaint when determining standing. See
Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004) (holding that the operative complaint for purposes of determining
standing is that which adds the relevant plaintiff to the action). Thus, the question is whether Barber had standing
on November 27, 2019.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 12
echoed this sentiment, stating that Defendants would “not . . . run dual engineering” on different
proposals at the same time. (Id. at Page ID #40.) By proceeding with even preliminary
engineering, the record supports the conclusion that, by November 27, 2019, Defendants had
decided to remove the Dam.8 Thus, the Dam’s removal was not a “highly attenuated” link in a
“chain of possibilities.” Clapper, 568 U.S. at 410.
Defendants next argue that, even if they had already decided to remove the Dam,
Barber’s anticipated injuries from the Dam removal project were still speculative. According to
Barber, demolishing the Dam creates a substantial risk that she will suffer many injuries. Some
are more likely than others. But at the very least, she alleges that her property extends to the
water line of the Mill Pond and even includes part of the Mill Pond. Therefore, removing the
Dam will change the flow of water on Barber’s property and likely alter the property’s
configuration. That is all that is needed. Barber is likely to suffer an injury the moment the Dam
comes down, making the harm “certainly imminent.”
She also plausibly alleges that she faces a risk of “concrete” and “particularized” injuries.
The future harm is particularized because it will “affect [her] in a personal and individual way.”
Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560 n.1). Barber’s
direct proximity to the Mill Pond and the Dam create the risk of future harm when the Dam is
removed. These harms are unique to her property and thus sufficiently particularized. Her
future injuries are also “concrete.” To start, “the risk of real harm” can be sufficient to satisfy
the concreteness requirement, Spokeo, 578 U.S. at 341 (citing Clapper, 568 U.S. at 398),
meaning that Barber’s harms can be concrete even before they materialize. Whether or not any
future harm will amount to a taking, Barber faces a “substantial” risk of future harm.
TransUnion, 141 S. Ct. at 2210 (citing Clapper, 568 U.S. at 414 n.5). For example, Barber
contends that removing the Dam would likely cause her property to flood. Thus, she faces a
8
With little to combat these facts, the dissent ironically retorts that the decision was not final because there
remained “the possibility that defendants would abandon the project.” (Dissent at 16 (emphasis added).) As one
such “possibility,” the dissent argues that the Dam’s removal was speculative because there remained some
hypothetical risk that Defendants would not be able to scrounge up the funds to execute the project. But even the
dissent recognizes that Defendants invested at least $600,000 into the Dam removal and restoration project, which
clearly indicates that funding was not a pressing issue. In an attempt to undermine the record evidence showing that
Defendants had decided to remove the Dam, the dissent engages in precisely the kind of unsupported speculation
that it claims to admonish.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 13
“risk of future harm” that “is sufficiently imminent and substantial” thereby giving her standing
to seek injunctive relief. TransUnion, 141 S. Ct. at 2210 (citing Clapper, 568 U.S. at 414 n.5).
III. CONCLUSION
For these reasons, having determined that Barber’s claims are ripe, and that she has
standing to sue, we REVERSE the district court’s order and REMAND for the district court to
further consider whether Barber is entitled to injunctive relief and whether she is entitled to
proceed with her takings claim.
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 14
_________________
DISSENT
_________________
CHAD A. READLER, Circuit Judge, dissenting. We should begin and end with the
foundational principle that a plaintiff must face “actual or imminent” harm to have standing.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). When Blanche Barber
sued to enjoin defendants from removing a dam near her home, they had yet to draft—much less
approve—blueprints for the project. Nor could defendants afford to dismantle the dam absent
future largesse from funding agencies. And nowhere did the complaint say when construction
work might begin. At best, Barber alleged that defendants hoped to remove the dam some day in
the future. But “‘some day’ intentions—without any description of concrete plans, or indeed
even any specification of when the some day will be—do not support a finding of the ‘actual or
imminent’ injury that our cases require.” Id. at 564; cf. Paraquad, Inc. v. St. Louis Hous. Auth.,
259 F.3d 956, 958–60 (8th Cir. 2001) (concluding that tenants faced no “certainly impending”
harm from a proposal to modernize their public housing complex where “demolition has not yet
started, drawings are still in the preliminary phase, and no new construction has begun” before
dismissing their suit as unripe).
And what harm would the dam’s theoretical removal cause? Barber’s allegations that the
project will “impact” her, “impair . . . natural habitat,” and “affect” surface water leave key
questions unresolved. Impact how? What habitat? Affect surface water where? Without
answers, these claims “amount to nothing more than the type of ‘unadorned, the defendant-
unlawfully-harmed-me’ accusations that Iqbal deemed insufficient.” Ctr. for Bio-Ethical
Reform, Inc. v. Napolitano, 648 F.3d 365, 374 (6th Cir. 2011) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)) (characterizing allegations that the defendants shared private
information as insufficient where the plaintiffs failed to say what information had been shared,
who shared it, or why the sharing impaired their rights); see also Bates v. Green Farms Condo.
Ass’n, 958 F.3d 470, 482–83 (6th Cir. 2020) (deeming allegations that the defendants had falsely
represented the plaintiffs’ debt “too conclusory” because the complaint did not identify what the
false representation was, when it was made, or who made it); Ass’n of Am. Physicians &
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 15
Surgeons v. U.S. Food & Drug Admin., 13 F.4th 531, 543–44 (6th Cir. 2021) (applying
plausibility pleading requirements to standing).
To be fair, Barber did present other allegations. Yet those allegations were so numerous
that any attempt at consistency (and with it, certainty) washed away in the torrent. She
contended that dismantling the dam would drain the pond by her home yet flood her property;
destroy wetlands yet create swamps; and “Threaten Endangered Species such as [the] Eastern
Massasauga Rattlesnake,” thereby (as counsel explained at oral argument) inciting the reptiles to
“go out into the town . . . and start biting people,” making snakes “more prevalent.” Which of
these harms would occur (if any), not to mention when, remains anyone’s guess. Compounding
this uncertainty, Barber alleged that defendants had allocated over $600,000 for what she
described as “Mill Pond Dam Natural Area Restoration.” Whether Barber faced harm thus
turned not only on whether defendants would remove the dam but also on the success of their
restoration efforts, further undercutting her argument for standing. See Memphis A. Philip
Randolph Inst. v. Hargett, 978 F.3d 378, 387–88 (6th Cir. 2020) (describing the threat of future
harm from Tennessee’s signature verification process for absentee ballots as speculative because
“[m]any voters . . . will likely have an opportunity to cure any errors in their initial absentee
ballot”).
Applying an ounce of “experience and common sense” reveals that Barber had little idea
how the project, should it come to fruition, would affect her property. Iqbal, 556 U.S. at 679.
Instead, her fears rested on “mere speculation and assumptions,” a far cry from the “certainly
impending” injury necessary to establish standing where harm has yet to occur. Kanuszewski v.
Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 410 (6th Cir. 2019) (cleaned up) (quoting
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 411 (2013)).
With no help from the complaint, the majority opinion resorts to misdirection. It first
suggests that the dam will be removed “in the near future” based on information gleaned from
oral argument. Supra, at 11. But the state of the project today is “entirely irrelevant to the
question of standing.” Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004). Standing, of course, is
determined at the time a suit is filed, not years later. See Price v. Medicaid Dir., 838 F.3d 739,
746 (6th Cir. 2016). More than anything, appeals to recent developments confirm the absence of
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 16
any allegations in Barber’s complaint indicating when the dam’s purportedly “imminent”
removal might occur.
Next up is the hubbub over parts of the record that say the township “came to a decision”
at a June 2019 public meeting. Supra, at 11. But it was not a decision to remove the dam. In
fact, the township’s only “decision” was to propose removing the dam to the county. Yet the
county, which owns the dam, remained free to reject the recommendation.
From there, the majority opinion draws two more conclusions from the record:
(1) township officials expressed reluctance at the June meeting to prepare engineering plans for
more than one proposal as to the dam’s future; and (2) defendants subsequently awarded
contracts for preliminary design work. Putting the two together, the majority opinion infers that
the dam’s fate was sealed by November 2019. That inference, however, overlooks the
possibility that defendants would abandon the project if the preliminary plans proved
unsatisfactory. After all, as the township’s consulting engineer warned, further study might
reveal “red flags that can kill a project.” This uncertainty belies the conclusion that Barber met
her burden to “clearly . . . allege facts demonstrating” standing. Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016) (citation omitted). In any event, emphasizing whether defendants had decided
to remove the dam obscures another essential question: when might construction work begin?
Here, the majority opinion has no answer, further undermining its conclusion that Barber’s
complaint plausibly alleged imminent harm. See Lujan, 504 U.S. at 564.
Finally, the majority opinion deems Barber’s alleged future injuries nonspeculative
because the dam’s removal will “change” how water flows somewhere on Barber’s land and
“alter the property’s configuration.” Supra, at 12. Yet the majority opinion fails to describe this
hypothetical change or give any indication as to what sort of alteration might occur. That void
only cements what, by this point, should be crystal clear: Barber failed to plausibly allege
certainly impending harm.
Because Barber lacks standing, her lawsuit amounts to no more than a request for an
advisory opinion. See Miller v. City of Wickliffe, 852 F.3d 497, 503 (6th Cir. 2017). We must
decline that invitation. United States v. Fruehauf, 365 U.S. 146, 157 (1961). One reason why is
No. 20-2297 Barber v. Charter Twp. of Springfield, Mich. Page 17
that courts that seek to discern the law’s meaning without “‘that concrete adverseness which
sharpens the presentation of issues’ necessary for the proper resolution of constitutional
questions” may well commit error in doing so. City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983) (citation omitted); see also Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 354
(6th Cir. 2007); Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1005
(1924) (“Facts and facts again are decisive.”). Another is that wading prematurely into local
disputes offends principles of federalism, which favor affording local officials the opportunity to
develop their policies—and thus nip constitutional concerns in the bud, before any infringement
on individual rights occurs—without intervention by federal courts. See Saginaw County v.
STAT Emergency Med. Servs., Inc., 946 F.3d 951, 958 (6th Cir. 2020) (citing Pub. Serv. Comm’n
of Utah v. Wycoff Co., 344 U.S. 273, 247 (1952)). And yet another is that any relaxation of
standing requirements necessarily “alter[s] the allocation of power . . . away from a democratic
form of government,” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation
omitted), by charting a course for those aggrieved in the political process to “run[] to a
sympathetic court for a do-over without any concrete injury to speak of,” Vonderhaar v. Village
of Evendale, 906 F.3d 397, 401 (6th Cir. 2018) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 345 (2006)).
Nor, for that matter, would enforcing ordinary standing rules cause any harm to Barber.
Even following dismissal, she would remain free to seek judicial intervention if her squabble
with defendants were to develop into something more than an abstract policy disagreement about
the dam’s future. Until then, however, federal courts have no place. See Summers, 555 U.S. at
493; Vonderhaar, 906 F.3d at 401. At day’s end, I would affirm the district court’s decision to
dismiss Barber’s case for lack of standing, leaving questions of ripeness for another day.