Salmon Spawning & Re v. Gutierrez ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALMON SPAWNING & RECOVERY 
ALLIANCE; NATIVE FISH SOCIETY;
CLARK-SKAMANIA FLYFISHERS,
Plaintiffs-Appellants,
v.
CARLOS M. GUTIERREZ, in his No. 06-35979
official capacity; UNITED STATES
DEPARTMENT OF COMMERCE; D.  D.C. No.
CV-05-01877-RSM
ROBERT LOHN, in his official
capacity; NATIONAL OCEANIC AND OPINION
ATMOSPHERIC ADMINISTRATION
NATIONAL MARINE FISHERIES
SERVICE; CONDOLEEZZA RICE, in her
official capacity; UNITED STATES
DEPARTMENT OF STATE,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
April 11, 2008—Seattle, Washington
Filed October 8, 2008
Before: A. Wallace Tashima, M. Margaret McKeown, and
William A. Fletcher, Circuit Judges.
Opinion by Judge McKeown
14321
14324 SALMON SPAWNING & RECOVERY v. GUTIERREZ
COUNSEL
Eric Redman, Svend A. Brandt-Erichsen, Kelly B. Fennerty,
Heller Ehrman LLP, Seattle, Washington, for the plaintiffs-
appellants.
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14325
Matthew J. McKeown, Acting Assistant Attorney General,
Coby Howell, Ellen Durkee, Mark Haag, Environmental &
Natural Resources Division, United States Department of Jus-
tice, Washington, D.C., for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Wild salmon and steelhead, which are listed as threatened
or endangered under the Endangered Species Act, have been
the subject of much litigation in the federal courts. As they
swim back and forth from the Pacific Northwest to Canada,
the fish have no cognizance of an international boundary, or
the Pacific Salmon Treaty of 1999 (“Treaty”), an effort by
Canada and the United States to manage salmon populations
originating in Alaska and the Pacific Northwest.
This appeal concerns whether three conservation groups
have standing to challenge the decision of federal agencies
and officials to enter into, and remain a party to, that Treaty.
The groups alleged that take levels permitted under the Treaty
have allowed Canadian fisheries to overharvest endangered
and threatened salmon and steelhead. The district court dis-
missed all three of their claims for lack of standing. We
reverse the district court in part because the groups have pro-
cedural standing to bring their third claim for relief. We
affirm the dismissal of the first and second claims.
BACKGROUND
At the heart of this case are chinook and coho salmon and
steelhead trout populations from Puget Sound, lower Colum-
bia River, and Snake River (collectively, “salmon”). Twenty-
six populations of these salmon are listed as threatened or
endangered under the Endangered Species Act, 16 U.S.C.
14326 SALMON SPAWNING & RECOVERY v. GUTIERREZ
§ 1531 et seq. (“ESA”). During their lifetime, these fish swim
northward toward waters off the coast of British Columbia
and Alaska, and then journey back through Alaskan and
Canadian waters to return to their rivers of origin, where they
spawn and die. Because of these unusual transboundary
migration patterns, ESA-listed salmon that originate in United
States waters are often caught by commercial and recreational
fishers in Canada before they can make it back to their rivers
of origin.
In 1985, Canada and the United States entered into the
Pacific Salmon Treaty to manage salmon populations origi-
nating in Alaska, Canada, and the Pacific Northwest. That
version of the Treaty set harvest ceilings for fisheries in both
countries. Those ceilings remained constant from year to year.
The ceilings initially proved successful at increasing salmon
survival, but a drought in the early 1990s and poor survival
conditions reversed that effect. In 1992, the Treaty expired.
Unable to work out another agreement, the United States and
Canada went back to managing their respective fisheries inde-
pendently.
In 1999, the two countries entered into another Treaty,
which is at the heart of this litigation. In contrast to the 1985
version, a portion of the 1999 Treaty established annual
abundance-based chinook management regimes for fisheries
off the coast of Southeast Alaska, Canada, Washington, and
Oregon. Because Canadian, or “northern,” fisheries harvest
listed salmon in substantially greater numbers than the United
States, or “southern,” fisheries, the Treaty provisions focus
mostly on the take levels of Canadian fisheries. Rather than
setting absolute harvest ceilings that remain unchanged from
year to year, the 1999 Treaty sets annual chinook harvest lim-
its based on pre- and in-season estimates of abundance.
The Treaty is implemented through the Pacific Salmon
Commission (“Commission”). The Commission collects data
on harvest from the two countries, and then recommends fish-
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14327
ery management regimes. The Secretary of State of the United
States, in consultation with the Secretary of Commerce and
the Secretary of the Interior, approves or disapproves regimes
that are recommended by the Commission. 16 U.S.C.
§ 3633(a)(2). Only those fishery regimes that are approved by
the Secretary of State under subsection (a)(2) are forwarded
to the states and tribes for implementation. Id. § 3633(b). The
Treaty provisions will expire at the end of 2008, unless the
United States and Canada agree to an extension or modifica-
tion.
The United States’ implementation of the Treaty provisions
was conditioned on its compliance with the requirements of
the ESA. Under § 7(a)(2), 16 U.S.C. § 1536(a)(2), federal
agencies must consult with either the National Marine Fish-
eries Service (“NMFS”) or the Fish and Wildlife Service
(“FWS”) to “insure that any action authorized, funded, or car-
ried out by such agency . . . is not likely to jeopardize the con-
tinued existence of any endangered species or threatened
species.” Formal consultation begins with a written request by
the agency planning to take action (“action agency”), and con-
cludes with the issuance of a biological opinion (“BiOp”) by
either NMFS or FWS as the “consulting agency.” 50 C.F.R.
§ 402.14(c), (l)(1). NMFS or FWS opines in the BiOp
whether the proposed action, taken together with its cumula-
tive effects, is likely to jeopardize the continued existence of
listed species. Id. § 402.14(g)(4).
If an action is likely to jeopardize a species, the action
agency must determine whether any “reasonable and prudent
alternatives” (“RPA”) exist that will avoid jeopardizing
threatened species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R.
§ 402.14(h)(3). If the BiOp results in a “no jeopardy” finding,
or an RPA is available, NMFS or FWS will issue an “inciden-
tal take statement” with the BiOp that exempts the action
agency, and those authorized by it, from the taking prohibi-
tion of ESA § 9, 16 U.S.C. § 1536(b)(4).
14328 SALMON SPAWNING & RECOVERY v. GUTIERREZ
The agency action triggering the ESA § 7 consultation pro-
cess in this case was the State Department’s decision to enter
into the 1999 Treaty on behalf of the United States. In effect,
NMFS, as the consulting agency, studied whether Canadian
take under the levels permitted by the Treaty would jeopar-
dize listed salmon. NMFS issued a BiOp in which it con-
cluded that Canadian take under the Treaty was not likely to
jeopardize the continued existence of threatened or endan-
gered salmon stocks. Because NMFS made a “no jeopardy”
determination, it had no obligation to identify any alterna-
tives. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14. NMFS
included an incidental take statement to exempt the agencies
from liability under ESA § 9.
In November 2005, three conservation groups—Salmon
Spawning & Recovery Alliance, Native Fish Society, and
Clark-Skamania Flyfishers1 (collectively “Salmon
Spawning”)—filed this action. Salmon Spawning alleged that
the Department of Commerce, NMFS, the State Department,
and the heads of those agencies in their official capacities,
violated their obligations under ESA §§ 7, 9, and 10, and
§§ 702 and 706 of the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 702 and 706. The conservation groups
challenged the BiOp as flawed, alleged that the federal agen-
cies and officials violated their substantive duties under the
ESA by continuing to implement the Treaty provisions, and
claimed that formal consultation needed to be reinitiated in
light of new information about listed salmon. The groups
noted that in 2005, NMFS issued a BiOp in which it acknowl-
edged that the Canadian harvest of Nooksack River chinook
1
Salmon Spawning & Recovery Alliance is a Washington-based group
“dedicated to aiding the recovery of threatened and endangered salmon
populations in the Northwest . . . .” Compl. ¶ 3. Native Fish Society is an
Oregon non-profit corporation “dedicated to the protection and recovery
of native fishes and their habitats in the Northwestern United States[.]” Id.
¶ 4. Clark-Skamania Flyfishers is a Washington non-profit corporation
“dedicated to the preservation of wild fish stocks, including ESA-listed
salmon and steelhead, and the natural resources that sustain them.” Id. ¶ 5.
 SALMON SPAWNING & RECOVERY v. GUTIERREZ 14329
is above the rate necessary to rebuild the population. NMFS
also noted in the 2005 BiOp that harvest rates by United
States and Canadian fisheries of Pacific Northwest chinook
from populations other than those at issue were too high to
allow these populations to recover.
The agencies and officials moved to dismiss the complaint
for lack of standing under Federal Rule of Civil Procedure
12(b)(1), or, in the alternative, for failure to state a claim
under Rule 12(b)(6). The district court ultimately dismissed
the complaint for lack of standing under Article III, conclud-
ing that Salmon Spawning failed to show causation and
redressibility. According to the court, the cause of the exces-
sive harvesting was Canadian fishermen, and redress was
speculative because the court could not direct the State
Department to renegotiate the Treaty with Canada. Standing
is a question of law that we review de novo. Citizens for Bet-
ter Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th
Cir. 2003).
ANALYSIS
The broad contours of Article III standing are well known.
We must first decide whether a plaintiff has suffered suffi-
cient injury to satisfy the “case or controversy” requirement
of Article III. Bennett v. Spear, 520 U.S. 154, 162 (1997);
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).
The plaintiff has the burden of establishing the three elements
of Article III standing: (1) he or she has suffered an injury in
fact that is concrete and particularized, and actual or immi-
nent; (2) the injury is fairly traceable to the challenged con-
duct; and (3) the injury is likely to be redressed by a favorable
court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992).
Statutory standing is the second part of the inquiry. Ceta-
cean Cmty., 386 F.3d at 1175. If a plaintiff has shown suffi-
cient injury to satisfy Article III, but has not been granted
14330 SALMON SPAWNING & RECOVERY v. GUTIERREZ
statutory standing, the suit must be dismissed under Federal
Rule of Civil Procedure 12(b)(6), because the plaintiff cannot
state a claim upon which relief can be granted. Canyon
County v. Syngenta Seeds, Inc., 519 F.3d 969, 975 n.7 (9th
Cir. 2008) (citing Cetacean Cmty., 386 F.3d at 1175).
I. ALLEGED LEGAL INADEQUACY OF THE BIOP
In the first claim for relief, Salmon Spawning alleged that
the 1999 BiOp authorizing the United States’ entry into the
Treaty was arbitrary and capricious in violation of § 5 of the
APA, and also a violation of ESA §§ 7 and 9. Specifically, the
groups claimed that the BiOp improperly compared only the
Treaty’s effect on harvest rates to harvest rates in the absence
of the Treaty, instead of aggregating the effects of take under
the Treaty, other harvest impacts, and non-harvest impacts;
failed to evaluate the effects of take under the Treaty on the
recovery and survival of listed salmon; evaluated only a frac-
tion of the Puget Sound chinook populations; did not develop
or apply a biologically based target exploitation rate in its
jeopardy evaluation of Upper Willamette chinook; studied
harvest impacts on the strongest components of the Lower
Columbia chinook population, but not the weaker ones; and
failed to analyze or propose reasonable and prudent measures
or alternatives that would force the fisheries to target more
selectively hatchery-origin salmon.2 In short, the conserva-
tionists challenge the biological foundation for the Treaty.
[1] To satisfy the injury-in-fact requirement of the Article
III inquiry, “a plaintiff asserting a procedural injury must
show that the procedures in question are designed to protect
2
Many salmon that are born in hatcheries have their adipose fin clipped
prior to their release into the ocean. NMFS recently adopted regulations
to prohibit the take of non-hatchery salmon, i.e., those with an intact adi-
pose fin. 50 C.F.R. § 223.203. The groups point out this distinction
between hatchery-origin and non-hatchery origin salmon to suggest the
ease with which NMFS could implement measures to limit the take of
non-hatchery salmon.
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14331
some threatened concrete interest of his that is the ultimate
basis of his standing.” Citizens for Better Forestry v. U.S.
Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003) (quoting
Public Citizen v. Dep’t of Transp., 316 F.3d 1002, 1015 (9th
Cir. 2003), rev’d on other grounds, 541 U.S. 752 (2004)
(quoting Cantrell v. City of Long Beach, 241 F.3d 674, 679
(9th Cir. 2001))). The conservation groups alleged in their
complaint that they have various “scientific, educational, aes-
thetic, recreational, spiritual, conservation, economic, and
business interests” in the salmon. The § 7 consultation proce-
dures in question—for example, the requirements that the
BiOp evaluate both the recovery and survival of listed spe-
cies, and that RPA or reasonable and prudent measures are
proposed—protect these concrete interests. See 50 C.F.R.
§ 402.02 (defining, for purposes of ESA § 7(a)(2), to “jeopar-
dize the continued existence” of a listed species); 16 U.S.C.
§ 1536(b)(3)(A) (requiring the proposal of RPA if jeopardy is
found). These procedures are designed to advance the ESA’s
overall goal of species preservation, and thus the groups’ spe-
cific goals as to salmon preservation, by ensuring agency
compliance with the ESA’s substantive provisions. See Ben-
nett, 520 U.S. at 176.
[2] A showing of procedural injury lessens a plaintiff’s bur-
den on the last two prongs of the Article III standing inquiry,
causation and redressibility. See Lujan, 504 U.S. at 572 n.7
(stating that the “person who has been accorded a procedural
right to protect his concrete interests can assert that right with-
out meeting all the normal standards for redressibility and
immediacy.”). Plaintiffs alleging procedural injury “must
show only that they have a procedural right that, if exercised,
could protect their concrete interests.” Defenders of Wildlife
v. U.S. EPA, 420 F.3d 946, 957 (9th Cir. 2005) (emphasis in
original), overruled on other grounds by Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007). It is
at this step of the standing analysis that the conservation
groups stumble.
14332 SALMON SPAWNING & RECOVERY v. GUTIERREZ
The BiOp considered two proposed agency actions, only
one of which is at issue in this appeal: the “formal commit-
ment of the U.S. to implement its fishery obligations consis-
tent with, and for the duration of, the new PST agreement—
essentially a final U.S. approval of the agreement.”3 The BiOp
recognized that, once the United States entered into the
Treaty, “fishing levels in Canada will be set by the provisions
of the agreement for its duration, and cannot be re-visited
except as may otherwise be agreed by both countries.”
(emphasis added).
[3] The relationship between the BiOp and the Treaty sets
up a dichotomy of interests that sinks the effort to establish
Article III standing for the first two claims; if the groups were
successful in establishing that NMFS failed to comply with
the procedural requirements of ESA § 7 in deciding whether
the United States’ entrance into the Treaty would jeopardize
listed species, the procedurally flawed consultation and defec-
tive BiOp could theoretically be set aside. See 5 U.S.C. § 706.
But, a court could not set aside the next, and more significant,
link in the chain—the United States’ entrance into the Treaty.
While the United States and Canada can decide to withdraw
from the Treaty, that is a decision committed to the Executive
Branch, and we may not order the State Department to with-
draw from it. See Earth Island Inst. v. Christopher, 6 F.3d
648, 652-53 (9th Cir. 1993) (deciding not to enforce a statute
that required the Executive Branch to negotiate with foreign
nations, as that branch alone has the exclusive power to con-
duct foreign relations). So, while the groups correctly allege
that they have a right to a procedurally sound consultation,
they cannot demonstrate that “that right, if exercised, could
protect their concrete interests.” Defenders of Wildlife, 420
F.3d at 957.
3
The other agency action that was examined by the BiOp was the deci-
sion by the North Pacific Fisheries Management Council to continue to
defer its management authority to the State of Alaska.
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14333
Plaintiffs alleging procedural injury can often establish
redressibility with little difficulty, because they need to show
only that the relief requested—that the agency follow the cor-
rect procedures—may influence the agency’s ultimate deci-
sion of whether to take or refrain from taking a certain action.
See, e.g., Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768,
779 (9th Cir. 2006). This is not a high bar to meet. But, the
redressibility requirement is not toothless in procedural injury
cases. Here, if a court were to give the groups the remedy that
they seek—that NMFS and the State Department follow the
proper procedures during a new § 7 consultation process—the
ultimate agency decision of whether to enter into the Treaty
with Canada, made nine years ago, could never be influenced.
In effect, if we rule against the groups’ claim of procedural
injury, they will continue to suffer injury; and, if we rule in
their favor, they will still suffer injury because we cannot
undo the Treaty. Cf. id. That the BiOp authorized the United
States to enter into a Treaty with a foreign sovereign “fore-
close[s] our ability to provide effective relief.” Id.
[4] Perhaps recognizing their redressibility quandary, the
conservation groups assert that the BiOp authorized agency
actions broader than the State Department’s entrance into the
Treaty.4 But, this semantic attempt to turn the BiOp into a
freestanding basis for relief fails. The agency action that the
BiOp authorized was the United States’ entrance into the
Treaty. And, although we can set aside the BiOp, we cannot
remedy the harm asserted. We affirm the district court’s dis-
missal of the first claim for lack of standing.
4
For example, the groups suggest that the BiOp authorized the federal
agencies to seek out and implement additional conservation measures,
required them to monitor Treaty fisheries, and assigned them ongoing
roles in implementing the Treaties.
14334 SALMON SPAWNING & RECOVERY v. GUTIERREZ
II. THE AGENCIES’ CONTINUED IMPLEMENTATION OF THE
TREATY
[5] In its second claim for relief, Salmon Spawning asserted
that the agencies’ and officials’ continued participation in the
implementation of the Treaty jeopardized listed salmon in
violation of ESA § 7(a)(2), and that such participation was
arbitrary and capricious in violation of the APA. Section
7(a)(2) confers upon agencies that are considering discretion-
ary actions an affirmative “do-no-harm obligation” when their
actions could cause harm to an endangered species. Defenders
of Wildlife, 420 F.3d at 965. This duty is separate from an
agency’s responsibility to comply with the procedures
required by § 7. See id. at 957 (noting that a plaintiff may
allege both procedural and substantive violations of the ESA).
In other words, even if an action agency has satisfied the
ESA’s consultation requirements, a court may conclude that
the agency has not complied with its substantive duty to avoid
jeopardy. Id. So, in contrast to its first claim, which focused
on alleged procedural flaws that occurred during the pre-
Treaty consultation process, Salmon Spawning’s second
claim challenges the agencies’ decision to continue allowing
excessive Canadian harvesting now that the United States is
a party to the Treaty.
Even assuming that Salmon Spawning meets the injury-in-
fact requirement—by asserting that its scientific, educational,
aesthetic, recreational, economic, and business interests in the
listed species will continue to be harmed by the failure to cor-
rect overharvesting by the Canadians—a more difficult ques-
tion is whether the groups have established causation and
redressibility with respect to this claim. To show causation,
the plaintiff must demonstrate a “causal connection between
the injury and the conduct complained of—the injury has to
be fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third
party not before the court.” Lujan, 504 U.S. at 560-61 (quot-
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14335
ing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26,
41-42 (1976) (internal quotation marks omitted)).
[6] In the complaint, Salmon Spawning alleged that the
groups’ injury is caused by the United States’ continued
implementation of the Treaty, without exercising the authority
to withdraw from the Treaty or requesting additional conser-
vation measures to benefit listed salmon. On these allegations
alone, the district court properly concluded that causation was
lacking. The excessive harvesting permitted under the Treaty
is not fairly traceable to the United States’ failure to withdraw
from the Treaty. If the United States withdrew, the harvesting
of listed species would arguably increase, because the Treaty
set abundance-based limits on the Canadians’ take. The over-
harvesting is also not fairly traceable to the agencies’ failure
to ask the Canadians to take additional conservation mea-
sures. Although the Canadians, if asked, might agree to
require a reduction in their fisheries’ take, they could also
refuse to accommodate the United States’ request. If we con-
sider only these grounds as the bases for establishing causa-
tion, the “causal connection” put forward by the conservation
groups relies on an “attenuated chain of conjecture” insuffi-
cient to support standing. See Ecological Rights Found. v.
Pacific Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000).
But, on appeal, the groups have focused on a different
ground to illustrate their injury: the ability of the federal agen-
cies to limit the take of United States fisheries.5 They argue
that because the agencies can limit the take of United States
5
The groups admitted at oral argument that they migrated from their
focus in district court on reducing the take of Canadian fisheries, to a posi-
tion that United States fisheries should reduce their take and thus offset the
Canadians’ take. A plaintiff’s basis for standing must “affirmatively
appear in the record.” Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 546 (1986). The allegation in the complaint that the defendants failed
to “request additional conservation measures to benefit ESA-listed salmon
populations” is marginally broad enough to include measures that could be
taken by either Canada or the United States.
14336 SALMON SPAWNING & RECOVERY v. GUTIERREZ
fisheries and thus offset the effects of Canadian harvesting,
the failure to take such action while permitting Canadian
overharvesting under the Treaty violates the ESA.
Though we are dubious about this proposition for purposes
of causation and we are not inclined to read the complaint so
broadly as to encompass an entirely new theory of causation,
even if we were to credit this argument, redressibility poses
an upstream battle. Salmon Spawning argues that a court
order declaring that the agencies and officials violated the
ESA and APA would require the defendants to exercise their
authority to reduce the take of United States fisheries. We are
not persuaded. According to Salmon Spawning, if we
declared that the agencies violated their ESA obligation to
avoid jeopardy, that would leave it “up to Defendants to
determine whether . . . negotiations with Canada—or changes
in U.S. fisheries—are needed to meet their obligations under
the ESA.” This argument highlights the key difference
between asserting substantive and procedural violations of the
ESA: a plaintiff alleging procedural violations of the ESA
must show only that the procedural right could protect their
interest, whereas a plaintiff alleging a substantive violation
must demonstrate that its injury would likely be redressed by
a favorable court decision.
[7] For much the same reason as the first claim fails, this
claim hinges on agency action vis-a-vis the Treaty. The court
cannot order renegotiation of the Treaty, and discretionary
efforts by the agencies are too uncertain to establish redressi-
bility. That a favorable judicial decision would leave matters
to the discretion of the State Department and NMFS makes
equally likely the possibility that the agencies would decide
to take no “agency action” with respect to Canada’s fisheries
—so as not to be constricted by § 7’s “no jeopardy”
requirement—as the possibility that they would renegotiate a
Treaty that would more aggressively limit the Canadians’
take. Because Salmon Spawning has failed to show redressi-
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14337
bility, we affirm the district court’s dismissal of the second
claim for relief.
III. THE AGENCIES’ FAILURE TO REINITIATE CONSULTATION
[8] Salmon Spawning also alleged that the State Depart-
ment and NMFS were obligated by ESA § 7 and its imple-
menting regulations to reinitiate consultation on the 1999
BiOp. Consultation under § 7 must be reinitiated where
(a) discretionary federal involvement or control has been
retained or authorized; and (b) the amount or extent of taking
specified is exceeded, new information reveals effects that
may affect listed species or critical habitat in a manner not
considered, the action is subsequently modified so as to cause
an effect to the listed species or critical habitat not previously
considered, or a new species is listed or critical habitat desig-
nated. 50 C.F.R. § 402.16. The duty to reinitiate consultation
lies with both the action agency and the consulting agency.
See id.
[9] According to Salmon Spawning, since the BiOp was
issued in 1999, new criteria developed by NMFS show that
the Canadian harvest is taking more Puget Sound chinook
than the BiOp anticipated; new data shows the amount and
extent of the Canadian harvest of ESA-listed salmon; NMFS
has changed the definition of salmon evolutionary significant
units since 1999, such that almost three quarters of the salmon
caught in some Canadian fisheries are ESA-listed; and it is
now possible to differentiate between hatchery-origin salmon
and listed salmon.
[10] These claims alleged sufficient injury to satisfy the
“case or controversy” requirement of Article III. With respect
to injury in fact, Salmon Spawning claims that the State
Department and NMFS violated the procedural requirements
of § 7 by failing to reinitiate consultation in light of new
information. The requirement that consultation be reinitiated
protects a “concrete threatened interest” that is the basis of
14338 SALMON SPAWNING & RECOVERY v. GUTIERREZ
Salmon Spawning’s standing, the avoidance of harm to listed
species. Citizens for Better Forestry, 341 F.3d at 969-70.
Because Salmon Spawning has properly alleged procedural
injury, as noted earlier, causation and redressibility are
relaxed. Lujan, 504 U.S. at 572 n.7. That it is uncertain
whether reinitiation will ultimately benefit the groups (for
example, by resulting in a “jeopardy” determination) does not
undermine their standing. Cantrell, 241 F.3d at 682. The
asserted injury is not too tenuously connected to the agencies’
failure to reinitiate consultation. And a court order requiring
the agencies to reinitiate consultation would remedy the harm
asserted. Unlike the other claims, this claim is a forward-
looking allegation whose remedy rests in the hands of federal
officials and does not hinge on upsetting the Treaty.
[11] Salmon Spawning also meets the requirements for stat-
utory standing under the ESA and the APA. The ESA’s
citizen-suit provision authorizes the groups to bring suit
against the State Department, as the action agency, for failure
to comply with its ESA obligations. 16 U.S.C.
§ 1540(g)(1)(A). As for standing under the APA, the failure
to reinitiate § 7 consultation is a final agency action subject
to judicial review. See Envtl. Prot. Info. Ctr. v. Simpson Tim-
ber Co., 255 F.3d 1073, 1079 (9th Cir. 2001). The conserva-
tion groups’ interests in the protection of listed salmon are
within the zone of interests to be protected by the ESA regula-
tion requiring reinitiation. See id.
[12] Finally, Salmon Spawning has established associa-
tional standing. Public Citizen, 316 F.3d at 1019. Each of the
conservation groups’ members has standing to sue individu-
ally; the interests the groups seek to protect are germane to
their purposes as conservation organizations; and neither the
claim asserted nor the relief requested requires the participa-
tion of the individual members in the lawsuit. Id. Therefore,
we reverse the district court’s dismissal of Salmon Spawn-
SALMON SPAWNING & RECOVERY v. GUTIERREZ 14339
ing’s third claim for lack of standing and remand for further
proceedings.6
The judgment of the district court is affirmed in part,
reversed in part, and remanded. We remand to the district
court to determine whether attorneys’ fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412, should be granted.
Each party shall pay its own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
6
The agencies and officials moved to dismiss in the alternative for fail-
ure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Because the motion to dismiss targeted standing, Salmon Spawning did
not focus on this argument below, nor did the district court rule on it. This
issue was not briefed on appeal. Therefore, we decline to pass on the mer-
its of the motion to dismiss and remand to the district court for further pro-
ceedings. We offer no opinion whether Salmon Spawning has stated a
claim for relief.