Roz Glasser v. Nmfs , 360 F. App'x 805 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 28 2009
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
No. 08-35764
ROZ GLASSER, D.C. No. 2:06-cv-00561-BHS
Plaintiff-Appellant, MEMORANDUM *
v.
NATIONAL MARINE FISHERIES
SERVICE, and BARRY THOM,
Acting Regional Administrator,
National Oceanic and Atmospheric
Administration,
Defendants-Appellees,
and
CITY OF SEATTLE, and
WASHINGTON DEPARTMENT OF
FISH AND WILDLIFE,
Intervenors-
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 16, 2009
Seattle, Washington
*
This disposition is not appropriate for publication and may not be cited to or by
the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
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Before: RAWLINSON, CALLAHAN, Circuit Judges, and BURNS,** District
Judge.
The City of Seattle constructed and operates a sockeye salmon hatchery in the
Cedar River watershed, which could incidentally harm two local fish species listed
under the Endangered Species Act. Appellant Roz Glasser (Glasser) sued the
National Marine Fisheries Service (NMFS) and D. Robert Lohn, Regional
Administrator of the National Oceanic and Atmospheric Administration, challenging
NMFS’s approval of the salmon hatchery, its issuance of an incidental take permit
(ITP) and final biological opinion, and the agreement implementing these decisions,
known as the Cedar River Habitat Conservation Plan (CRHCP).
Among other things, Glasser challenged the adequacy of the administrative
record supporting the CRHCP, and requested that other materials she identified be
added. The City of Seattle then requested that NMFS amend the ITP to exclude the
sockeye hatchery at issue here. The NMFS obliged, which had the effect of
removing the legal protection the City enjoyed under the ITP for violations of the
Endangered Species Act arising out of its operation of the hatchery.
Glasser then filed a supplemental complaint contending the procedures
required by the Administrative Procedure Act, 5 U.S.C. § 706, were not followed
**
The Honorable Larry Alan Burns, District Judge for the Southern District of
California, sitting by designation.
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before the ITP was amended, and the decision to amend the ITP was contrary to the
National Environmental Policy Act. She sought declaratory relief that the law had
been violated, as well as injunctive relief directing NMFS to rescind its removal of
the hatchery from the amended ITP and conservation plan. The district court denied
all relief and dismissed Glasser’s supplemental complaint.
We affirm. We hold Glasser lacks standing to pursue the claims in her
supplemental complaint. By removing the hatchery from the ITP, NMFS gave
Glasser what she was initially asking for, i.e., the right to sue the City of Seattle
under the Endangered Species Act if it was established that the City was harming the
two listed species through its operation of the hatchery. In contrast, Glasser’s
supplemental complaint alleges only procedural injury, in particular the way the
return to the status quo was accomplished.
A procedural injury in vacuo is insufficient to support standing. Summers v.
Earth Island Inst., ___ U.S. ___, 129 S. Ct. 1142, 1149–51 (2009) (holding that after
dispute over alleged environmental harm was settled, plaintiff had no standing to
challenge the basis for the allegedly harmful action or pursue a claim for violation of
procedural rights); see also id. at 1153 (explaining that procedural injury without
concrete injury is insufficient to confer standing) (Kennedy, J., concurring). And it
doesn’t make a difference that Glasser may have to pursue another lawsuit against
the City of Seattle if it turns out the hatchery is harmful to the salmon; the
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inconvenience of litigating claims arising from future injuries likewise does not
support standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(holding that an injury in fact sufficient to support Article III standing must be actual
or imminent); Vermont Agency of Natural Resources v. United States ex rel. Stevens,
529 U.S. 765, 773 (2000) (explaining that standing must be based on something
more than the costs of litigating the claim).
In light of our holding that Glasser lacks standing to challenge the procedure
leading to the amendment of the ITP, we do not reach the issue of whether the
administrative record below was complete or ought to have been supplemented.
Phelps v. Alameida, 569 F.3d 1120, 1127 (9 th Cir. 2009) (holding that, where a
plaintiff lacks standing, federal courts cannot render a decision on the merits of a
dispute).
AFFIRMED.
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