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In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the majority and dissenting opinions disagreed about how to apply the “realistic threat” test set forth in Los Angeles v. Lyons, 461 U.S. 95, 107 (1983)). According to Justice Scalia’s majority opinion in Summers, the plaintiff organizations did not have standing to obtain injunctive relief because they failed to prove that their members were likely in the near future to hike on government land on which the Forest Service conducted allegedly illegal sales of timber without public notice and comment and that the facts alleged by the plaintiffs were weaker than the “conjecture” rejected as insufficient for standing in Lyons. By contrast, Justice Breyer’s dissenting opinion in Summers argued that there was a “realistic threat” of future harm to the plaintiffs under the Lyons test. This Article re-examines Lyons. The Article also discusses Supreme Court and lower court decisions that have applied the Lyons test or distinguished that case. The Article concludes that there was a realistic threat of harm justifying injunctive relief in Summers if Lyons and its progeny are correctly understood.


Published in 42 Ariz. St. L.J. 836 (2010).