Southcentral Foundation v. Anthc ( 2020 )


Menu:
  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SOUTHCENTRAL FOUNDATION,                 No. 18-35868
    Plaintiff-Appellant,
    D.C. No.
    v.                      3:17-cv-00018-
    TMB
    ALASKA NATIVE TRIBAL HEALTH
    CONSORTIUM,                              ORDER AND
    Defendant-Appellee.          AMENDED
    OPINION
    Appeal from the United States District Court
    for the District of Alaska
    Timothy M. Burgess, Chief District Judge, Presiding
    Argued and Submitted June 3, 2020
    Seattle, Washington
    Filed September 14, 2020
    Amended December 21, 2020
    Before: Ronald M. Gould, Carlos T. Bea, and
    Mary H. Murguia, Circuit Judges.
    Order;
    Opinion by Judge Murguia
    2         SOUTHCENTRAL FOUNDATION V. ANTHC
    SUMMARY *
    Tribal Health Services / Constitutional Standing
    The panel filed: (1) an order amending its opinion,
    denying a petition for panel rehearing, and denying on behalf
    of the court a petition for rehearing en banc; and (2) an
    amended opinion reversing the district court’s dismissal for
    lack of standing of a tribal health organization’s action
    seeking declaratory relief regarding alleged violations of a
    federal law concerning the provision of health services to
    Alaska Natives.
    The Alaska Native Tribal Health Consortium
    (“ANTHC”) is an intertribal consortium created by Congress
    pursuant to Section 325 of the Department of the Interior and
    Related Agencies Appropriations Act of 1998 to provide
    certain statewide health services at the Alaska Native
    Medical Center in Anchorage. Plaintiff Southcentral
    Foundation (“SCF”), a nonprofit regional tribal health
    organization, is a participant in ANTHC. SCF sued ANTHC
    for alleged violations of Section 325 in (1) forming an
    Executive Committee and delegating to it the full authority
    of the ANTHC Board of Directors; and (2) erecting
    informational barriers in a Code of Conduct and Disclosure
    Policy.
    The panel held that SCF alleged an injury in fact
    sufficient to confer Article III standing by alleging
    infringement of its governance and participation rights under
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    SOUTHCENTRAL FOUNDATION V. ANTHC                   3
    Section 325, as well as deprivation of its ability to exercise
    these rights intelligently and effectively. The panel reversed
    and remanded for further proceedings.
    COUNSEL
    William D. Temko (argued), Munger Tolles & Olson LLP,
    Los Angeles, California; Nicholas D. Fram, Munger Tolles
    & Olson LLP, San Francisco, California; Jahna M.
    Lindemuth, Holmes Weddle & Barcott, Anchorage, Alaska;
    for Plaintiff-Appellant.
    James E. Torgerson (argued), Stoel Rives LLP, Anchorage,
    Alaska; Brad S. Daniels and Rachel C. Lee, Stoel Rives LLP,
    Portland, Oregon; for Defendant-Appellee.
    ORDER
    The Opinion filed on September 14, 2020, is amended as
    set out in the attached Amended Opinion.
    With the amendment, the panel has voted to deny the
    petition for panel rehearing. Judges Gould and Murguia vote
    to deny the petition for rehearing en banc and Judge Bea so
    recommends.
    The full court has been advised of the petition for
    rehearing and rehearing en banc and no judge has requested
    a vote on whether to rehear the matter en banc. Fed. R. App.
    P. 35.
    The petition for panel rehearing and the petition for
    rehearing en banc are DENIED (Doc. 99). No further
    petitions shall be entertained.
    4        SOUTHCENTRAL FOUNDATION V. ANTHC
    OPINION
    MURGUIA, Circuit Judge:
    This case asks us to determine whether a tribal health
    organization has alleged an injury in fact sufficient to confer
    Article III standing to challenge alleged violations of a
    federal law concerning the provision of health services to
    Alaska Natives.
    The Alaska Native Tribal Health Consortium
    (“ANTHC”) is an intertribal consortium specifically created
    by Congress pursuant to Section 325 of the Department of
    the Interior and Related Agencies Appropriation Act of
    1998, Pub. L. No. 105-83, 111 Stat. 1543, to provide certain
    statewide health services at the Alaska Native Medical
    Center in Anchorage, Alaska. Southcentral Foundation
    (“SCF”)—a nonprofit regional tribal health organization that
    provides health care programs and services to over 65,000
    Alaska Natives—is a participant in the intertribal
    consortium.
    SCF appeals the district court’s dismissal of its
    complaint against ANTHC for alleged violations of Section
    325. We have jurisdiction under 28 U.S.C. § 1291, and we
    reverse.
    I. Background of Section 325
    Until the 1970s, the federal government administered
    health care programs and provided health services directly
    to Alaska Natives and American Indians through the Indian
    Health Service (“IHS”), an agency within the Department of
    Health and Human Services (“DHHS”). Thereafter, federal
    policy shifted towards empowering tribes and tribal
    organizations to manage and operate federal programs
    SOUTHCENTRAL FOUNDATION V. ANTHC                5
    offered for the benefit of Alaska Natives and American
    Indians. See 25 U.S.C. § 5301. With that goal in mind,
    Congress passed the Indian Self-Determination and
    Education Assistance Act of 1975 (“ISDEAA”) to promote
    a “meaningful Indian self-determination policy which will
    permit an orderly transition from the Federal domination of
    programs for, and services to, Indians to effective and
    meaningful participation by the Indian people in the
    planning, conduct, and administration of those programs and
    services.”
    Id. § 5302. In
    other words, the ISDEAA provides
    Indian tribes with the authority, discretion, and funds to
    administer programs that the federal government would
    otherwise provide.
    In the mid-1990s, IHS began constructing a new Alaska
    Native Medical Center (“ANMC”) building in Anchorage to
    serve Alaska Natives around the state. IHS planned to
    transfer control of the ANMC to Alaska tribal entities, but
    over 200 Alaska tribes and tribal organizations could not
    agree on a management structure. To break the deadlock,
    Congress enacted Section 325 in 1997, which created an
    intertribal consortium “to provide all statewide health
    services provided by the [IHS] of the [DHHS] through the
    Alaska Native Medical Center and the Alaska Area Office.”
    Pub. L. No. 105-83, § 325, 111 Stat. 1543, 1597 (1997).
    Section 325 outlines the formation and governance of the
    consortium in the following key terms:
    (a) Notwithstanding any other provision of
    law, and except as provided in this section,
    [thirteen regional tribal health organizations,
    including Southcentral Foundation] . . . are
    authorized to form a consortium (hereinafter
    “the Consortium”) to enter into contracts,
    compacts, or funding agreements . . . to
    6        SOUTHCENTRAL FOUNDATION V. ANTHC
    provide all statewide health services
    provided by the [IHS] of the [DHHS]
    through the [ANMC] and the Alaska Area
    Office. Each specified “regional health
    entity” shall maintain that status for purposes
    of participating in the Consortium only so
    long as it operates a regional health program
    for the [IHS] under Public Law 93-638
    (25 U.S.C. 450 et seq.), as amended.
    (b) The Consortium shall be governed by a
    15-member Board of Directors, which shall
    be composed of one representative of each
    regional health entity listed in subsection
    (a) above, and two additional persons who
    shall represent Indian tribes, as defined in
    25 U.S.C. 450b(e), and sub-regional tribal
    organizations which operate health programs
    not affiliated with the regional health entities
    listed above and Indian tribes not receiving
    health services from any tribal, regional or
    sub-regional health provider. Each member
    of the Board of Directors shall be entitled to
    cast one vote. Decisions of the Board of
    Directors shall be made by consensus
    whenever possible, and by majority vote in
    the event that no consensus can be reached.
    Id., 111
    Stat. at 1597–98 (emphases added).
    ANTHC was established as the statutorily-authorized
    Consortium to provide statewide health services under
    Section 325 shortly after its enactment. ANTHC’s Board of
    Directors (the “Board”) held its first meeting in January
    1998 and concurrently adopted its original bylaws (the
    “Bylaws”).
    SOUTHCENTRAL FOUNDATION V. ANTHC                 7
    II. Factual Background
    Many of the following facts are alleged in SCF’s
    complaint, which we presume to be true on this appeal. See
    Mont. Shooting Sports Ass’n v. Holder, 
    727 F.3d 975
    , 979
    (9th Cir. 2013).
    A. ANTHC’s Executive Committee
    In November 2014, the chair and president of ANTHC’s
    Board of Directors, Andy Teuber, sent an email to the Board
    stating that it would consider certain amendments to the
    Bylaws at the Board’s meeting in December 2014.
    At the meeting, the Board—by a thirteen-to-two vote and
    over the objection of SCF’s representative on the Board—
    adopted an amendment proposed by Teuber that resulted in
    the creation of a five-member “Executive Committee” of the
    Board. The Executive Committee was to be comprised of
    the Chair of the Board, and two or more additional Directors
    appointed by the Chair. The Executive Committee was
    authorized to “exercise the authority of the Board of
    Directors in the management of the Consortium,” subject to
    a few narrow exceptions. Importantly, actions taken by the
    newly created Executive Committee were not subject to
    ratification by the full Board. Furthermore, the Executive
    Committee’s authority was not limited to acting between
    Board meetings or in emergency situations.
    At the December 2014 meeting, Teuber also proposed an
    evaluation of the compensation paid to the Directors, which
    included the development of a plan to increase their
    compensation retroactive to incorporation, despite the fact
    that between 1999 and 2011 the Articles of Incorporation did
    not permit Directors to receive compensation for their
    service on the Board. Notably, this proposal followed a
    8        SOUTHCENTRAL FOUNDATION V. ANTHC
    settlement between ANTHC and IHS in June 2014, wherein
    IHS provided ANTHC a one-time payment of $153 million
    because of failures to pay certain contract obligations.
    Shortly thereafter, the Executive Committee met for the
    first time. Neither SCF’s primary Director, nor its alternate,
    were members of the Executive Committee. The Executive
    Committee approved lucrative employment contracts for
    two senior executives of ANTHC—Teuber and CEO Roald
    Helgesen. Notably, Teuber’s base salary increased from
    $110,000 to $730,000.
    Meanwhile, SCF’s designated Director was not informed
    that the Executive Committee had even met until Teuber
    summarized the results of the meeting in an email in
    February 2015. Although the email disclosed the execution
    of new contracts for Teuber and Helgesen, it did not disclose
    the terms of the contracts, including the compensation
    amount.
    Then, in April 2015, the Board held a special meeting
    during which it ratified the actions taken by the Executive
    Committee in December 2014. According to SCF, by this
    time Teuber’s and Helgesen’s new contracts had already
    been signed.
    Approximately two years later, in April 2017, the Board
    amended the Bylaws to clarify that, moving forward, the
    Executive Committee could convene only between meetings
    of the Board and that “all actions of the Executive
    Committee must be ratified and approved by a vote of the
    Board of Directors . . . in order to be effective.”
    SOUTHCENTRAL FOUNDATION V. ANTHC                     9
    B. ANTHC’s Code of Conduct and Disclosure Policy
    A couple of years after the Executive Committee was
    created, the Board amended its code of conduct (the “Code
    of Conduct”) “to clarify expectations and processes
    regarding handling conflicts of interest and confidential
    information.” According to SCF, these changes clarified
    that Directors could share with their designating entities
    certain information such as Board resolutions and final
    meeting minutes, but they stopped short of permitting full
    disclosure of Board material. In order to share any
    “confidential or sensitive” information with their
    designating entity, Directors needed the permission of
    Teuber or the Chair of the Ethics and Compliance
    Committee.
    The Board also adopted a Disclosure of Records and
    Information Policy (the “Disclosure Policy”) in September
    2016. According to SCF, the Disclosure Policy further
    restricted the information that ANTHC could share with the
    regional health entities and their designated Directors on the
    Board by “drastically limit[ing] Directors’ access to what
    ANTHC considered to be ‘[c]onfidential, proprietary, and
    other sensitive information.’” Specifically, the Disclosure
    Policy provided that Directors may “make reasonable
    inquiries to fulfill their fiduciary responsibilities, including
    their duty of representation,” but that the “disclosure of
    confidential, sensitive, proprietary or privileged information
    may be conditioned on adequate safeguards and assurances.”
    The Policy stated that “[o]rdinarily, requests are
    unreasonable to the extent they are unduly burdensome;
    likely to disrupt operations; . . . or otherwise inconsistent
    with the scope of a Director’s responsibilities.” The
    Disclosure Policy also provided that “[c]onfidential,
    proprietary and other sensitive information may also be
    10        SOUTHCENTRAL FOUNDATION V. ANTHC
    provided to Directors and other individuals, organizations
    and agencies in appropriate cases if adequate safeguards are
    in place to protect the integrity, confidentiality and use of the
    information[.]”
    In other words, according to SCF, the Disclosure Policy
    gave unidentified ANTHC personnel absolute discretion to
    determine what information could be shared, even with
    ANHC’s Directors, with a rebuttable presumption against
    disclosure.
    III.    Procedural Background
    On January 20, 2017, SCF filed suit seeking a
    declaration that ANTHC violated Section 325 when it:
    (1) formed the Executive Committee and delegated to it the
    full authority of the fifteen-member Board, and (2) erected
    informational barriers in the Code of Conduct and
    Disclosure Policy. ANTHC filed counterclaims seeking a
    declaration that these disputed practices did not violate state
    or federal law. In August 2017, the parties filed cross-
    motions for summary judgment, and ANTHC also moved to
    dismiss the complaint for lack of standing under Federal
    Rule of Civil Procedure 12(b)(1). The district court granted
    ANTHC’s motion to dismiss after concluding that SCF
    failed to allege an injury in fact sufficient to confer Article
    III standing. The court therefore denied as moot the parties’
    cross-motions for summary judgment. SCF timely appealed.
    IV.     Standard of Review
    We review de novo an order granting a motion to dismiss
    for lack of standing under Federal Rule of Civil Procedure
    12(b)(1) and construe all material allegations of fact in the
    complaint in favor of the plaintiff. Mont. Shooting Sports
    
    Ass’n, 727 F.3d at 979
    .
    SOUTHCENTRAL FOUNDATION V. ANTHC                    11
    V. Analysis
    Standing is “an essential and unchanging part of the
    case-or-controversy requirement of Article III.” Lujan v.
    Defs. of Wildlife, 
    504 U.S. 555
    , 560 (1992). To have Article
    III standing, a plaintiff must demonstrate that it has
    “(1) suffered an injury in fact, (2) that is fairly traceable to
    the challenged conduct of the defendant, and (3) that is likely
    to be redressed by a favorable judicial decision.” Spokeo,
    Inc. v. Robins, 
    136 S. Ct. 1540
    , 1547 (2016) (citing 
    Lujan, 504 U.S. at 560
    –61). Here, the only element of the standing
    inquiry at issue is injury in fact.
    “[A]n injury in fact must be both concrete and
    particularized.”
    Id. at 1548.
    To be particularized, an injury
    must “affect the plaintiff in a personal and individual way.”
    Id. (quoting 
    Lujan, 504 U.S. at 560
    n.1). “Thus, a plaintiff
    normally does not have standing where the only ‘asserted
    harm is a “generalized grievance” shared in substantially
    equal measure by all or a large class of citizens.’” Thomas
    v. Mundell, 
    572 F.3d 756
    , 760 (9th Cir. 2009) (quoting
    Warth v. Seldin, 
    422 U.S. 490
    , 499 (1975)). To be concrete,
    an injury “must be ‘de facto’; that is, it must actually exist.”
    
    Spokeo, 136 S. Ct. at 1548
    . In other words, an abstract,
    theoretical concern does not suffice. However, “[a]lthough
    tangible injuries are perhaps easier to recognize, we have
    confirmed in many of our previous cases that intangible
    injuries can nevertheless be concrete.”
    Id. at 1549.
    SCF alleges an injury in fact in two distinct ways: first,
    that ANTHC infringed SCF’s governance and participation
    rights under Section 325 by delegating the full authority of
    the fifteen-member Board to the five-person Executive
    Committee; and second, that ANTHC erected informational
    barriers in the Code of Conduct and Disclosure Policy that
    deprived SCF of its ability to exercise effectively its
    12       SOUTHCENTRAL FOUNDATION V. ANTHC
    governance and participation rights. We address each claim
    in turn.
    A. Standing for Executive Committee Claim
    To determine whether SCF has standing to bring its
    claim for a declaratory judgment that the formation of the
    Executive Committee violated federal law (the “Executive
    Committee Claim”), we begin our analysis with the plain
    language of Section 325. See United States v. Gallegos,
    
    613 F.3d 1211
    , 1214 (9th Cir. 2010) (“The starting point for
    our interpretation of a statute is always its language.”).
    In no uncertain terms, Section 325 provides that the
    “[t]he Consortium shall be governed by a 15-member Board
    of Directors, which shall be composed of one representative
    of each regional health entity listed in subsection
    (a) above[.]” Pub. L. No. 105-83, § 325(b). In addition,
    Section 325 expressly identifies thirteen regional health
    entities that shall be represented on the Board, including
    SCF.
    Id. § 325(a). Section
    325 also guarantees that “[e]ach
    member of the Board of Directors shall be entitled to cast
    one vote,” provided that the regional health entities maintain
    their status as such by operating a regional health program.
    Id. § 325(a)–(b). Based
    on this language, we have no difficulty concluding
    that SCF has met its burden to demonstrate that the injury it
    asserts—infringement of its governance and participation
    rights under Section 325—is sufficiently concrete and
    particularized. It is clear that the alleged injury is
    sufficiently particularized, as Section 325 allocates the right
    to govern the statutorily-authorized Consortium to a Board
    of Directors that expressly includes a representative from
    SCF. It is also clear that the alleged injury is sufficiently
    concrete. SCF alleged that the creation of the Executive
    SOUTHCENTRAL FOUNDATION V. ANTHC                   13
    Committee, and the delegation to it the full powers of the
    Board, infringed on SCF’s right under Section 325(b) to cast
    its vote in the management of the Consortium, thereby
    depriving SCF of the ability to effectuate the “meaningful
    Indian self-determination” envisioned by Congress when it
    enacted the ISDEAA. 25 U.S.C. § 5302; cf. Lapidus v.
    Hecht, 
    232 F.3d 679
    , 683 (9th Cir. 2000) (shareholders had
    standing under Massachusetts law to bring direct action for
    violation of their voting rights).
    We are not persuaded by ANTHC’s argument that SCF’s
    right to “participat[e] in the Consortium” referenced in
    Section 325(a) pertains only to SCF’s right to participate in
    the Consortium’s “provi[sion of] all statewide health
    services.” The clause in Section 325(a) referring to the
    “provi[sion of] all statewide health services” merely
    describes the types of “contracts, compacts, or funding
    agreements” that the Consortium is permitted to enter into;
    it does not limit the scope of the regional health entities’
    right to “participat[e] in the Consortium.” Rather, the clause
    in Section 325(a) regarding the regional health entities’ right
    to “participat[e] in the Consortium” relates to preserving
    each regional health entity’s status as such in order to serve
    on the Board of Directors. In other words, so long as the
    regional health entities operate a regional health program,
    they can be represented on the Board to “participat[e] in the
    Consortium.”
    Nor are we persuaded by ANTHC’s argument that
    Section 325 grants rights of governance only to Directors.
    ANTHC highlights that Section 325(b) references persons
    specifically—as opposed to entities—when it mandates that
    ANTHC “shall be governed by a 15-member Board of
    Directors, which shall be composed of one representative of
    each regional health entity . . . and two additional persons
    14       SOUTHCENTRAL FOUNDATION V. ANTHC
    who shall represent Indian tribes.” Pub. L. No. 105-83,
    § 325(b). Had Congress intended that the regional health
    entities exercise governance rights themselves, ANTHC
    argues, Congress would have specified how to allocate
    decision-making power among the regional health entities.
    But Congress did just that when it created the right to
    have a “representative” on the Board. A representative is
    “[s]omeone who stands for or acts on behalf of another.”
    Representative, Black’s Law Dictionary (11th ed. 2019).
    “The preeminent canon of statutory interpretation requires
    us to presume that the legislature says in a statute what it
    means and means in a statute what it says there.” Steinle v.
    City & Cty. of San Francisco, 
    919 F.3d 1154
    , 1164 (9th Cir.
    2019) (quoting In re HP Inkjet Printer Litig., 
    716 F.3d 1173
    ,
    1180 (9th Cir. 2013)). Had Congress meant, for instance,
    that regional health entities were merely “advisory,” it could
    have used this alternate language. Instead, Congress
    endowed each specified regional health entity with the right
    to have a “representative” on the Board that stands in the
    shoes of the designating entity by acting on its behalf.
    We briefly pause to note that ANTHC does not meet its
    “heavy burden” to establish mootness by virtue of the
    subsequent Bylaws amendment. Friends of the Earth, Inc.
    v. Laidlaw Envtl. Servs. (TOC), Inc., 
    528 U.S. 167
    , 189
    (2000). ANTHC argues that, after the Bylaws were
    amended in April 2017 to require Executive Committee
    actions to be ratified by the full Board to be effective, there
    is no reasonable likelihood that the alleged violation will
    recur. We have explained that “the mere cessation of illegal
    activity in response to pending litigation does not moot a
    case, unless the party alleging mootness can show that the
    ‘allegedly wrongful behavior could not reasonably be
    expected to recur.’” Rosemere Neighborhood Ass’n v. U.S.
    SOUTHCENTRAL FOUNDATION V. ANTHC                   15
    Envtl. Prot. Agency, 
    581 F.3d 1169
    , 1173 (9th Cir. 2009)
    (quoting Friends of the 
    Earth, 528 U.S. at 189
    ). Here,
    however, ANTHC does little more than point to the fact of
    the April 2017 amendment as evidence of mootness, which
    does little to assure that the amendment is not merely “a
    temporary policy that . . . will [be] refute[d] once this
    litigation is concluded.” Smith v. Univ. of Wash. Law
    School, 
    233 F.3d 1188
    , 1194 (9th Cir. 2000) (quoting White
    v. Lee, 
    227 F.3d 1214
    , 1244 (9th Cir. 2000)). This is
    especially true where ANTHC is not entitled to a
    presumption of good faith that its cessation of the disputed
    conduct will not recur. As we recently explained, the
    voluntary cessation of challenged acts by a private party is
    not entitled to the presumption of good faith enjoyed by
    legislative bodies when they repeal or amend a challenged
    legislative provision. Bd. of Trs. of the Glazing Health &
    Welfare Tr. v. Chambers, 
    941 F.3d 1195
    , 1199 (9th Cir.
    2019) (en banc). Therefore, without more, ANTHC has not
    met its burden to establish mootness.
    In sum, while we express no views on the merits of
    SCF’s claim that the formation of the Executive Committee
    violated Section 325, we conclude that Section 325 granted
    SCF governance and participation rights in the management
    of ANTHC to be exercised through SCF’s representative on
    the Board and that SCF has alleged an injury in fact
    sufficient to confer Article III standing to bring its claim.
    B. Standing for Information Claim
    Relatedly, SCF argues that it suffered an injury when
    ANTHC amended the Code of Conduct and adopted the
    Disclosure Policy, which together deprived SCF of its ability
    to exercise its governance rights intelligently and effectively
    by prohibiting SCF’s Director from sharing certain critical
    information with SCF.
    16        SOUTHCENTRAL FOUNDATION V. ANTHC
    Consistent with our foregoing conclusion that SCF has
    standing to bring its Executive Committee Claim, we
    likewise agree that the alleged deprivation of information
    necessary to exercise effectively the governance and
    participation rights allocated to the regional health entities in
    Section 325 constitutes an injury in fact sufficient to confer
    Article III standing. Indeed, the right to govern would be a
    hollow promise absent the information necessary to exercise
    that right intelligently.
    ANTHC relies on Wilderness Society, Inc. v. Rey,
    
    622 F.3d 1251
    (9th Cir. 2010), however, to argue that
    because Section 325 does not create an express right to
    information, SCF cannot establish standing as to this claim.
    That argument is unavailing. In Wilderness Society,
    environmental groups argued that they had standing to
    challenge various regulations issued by the United States
    Forest Service that “significantly limit[ed] the scope and
    availability of notice, comment, and appeals procedures” for
    proposed decisions concerning projects under the Forest
    Service Decisionmaking and Appeals Reform Act (“ARA”),
    thereby allegedly causing the environmental groups an
    “informational injury.”
    Id. at 1253, 1258–59.
    We observed
    that in order “[t]o ground a claim to standing on an
    informational injury, the ARA must grant a right to
    information capable of supporting a lawsuit.”
    Id. at 1259.
    We concluded that plaintiffs failed to assert an informational
    injury because “Congress’s purpose in mandating notice in
    the context of the ARA was not to disclose information, but
    rather to allow the public opportunity to comment on the
    proposals.”
    Id. at 1259.
    ANTHC argues that because the purpose of Section 325
    was to allow participation in decision-making—not to
    provide information—SCF does not have standing to assert
    SOUTHCENTRAL FOUNDATION V. ANTHC                    17
    an informational injury, even if information may act “as a
    predicate” for participation in decision-making. However,
    unlike the plaintiffs in Wilderness Society, SCF alleges an
    informational injury that is inextricably tied to its interest in
    exercising its governance and participation rights, not
    merely the right to participate in the public comment
    process. Cf. 
    Lapidus, 232 F.3d at 683
    (shareholders had
    standing under Massachusetts law to bring direct action for
    violation of their voting rights). This is a meaningful
    difference in kind. Accordingly, we conclude that SCF has
    demonstrated injury in fact sufficient to confer Article III
    standing to bring its informational injury claim.
    VI.     Conclusion
    Because we conclude that Section 325 conferred
    governance and participation rights to SCF, which
    necessarily includes an entitlement to information necessary
    to effectively exercise those rights, we reverse the district
    court’s dismissal of SCF’s complaint for lack of Article III
    standing and remand for further proceedings consistent with
    this opinion.
    REVERSED and REMANDED. Defendant-Appellee
    must bear all costs.