Wildearth Guardians v. Usfs ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDEARTH GUARDIANS; No. 21-35936
WESTERN WATERSHEDS
PROJECT; KETTLE RANGE D.C. No.
CONSERVATION GROUP, 2:20-cv-00223-
Plaintiffs-Appellants, RMP
v.
OPINION
UNITED STATES FOREST
SERVICE; GLENN CASAMASSA,
Pacific Northwest Regional Forester;
RODNEY SMOLDON, Forest
Supervisor,
Defendants-Appellees,
DIAMOND M RANCH, a
Washington General Partnership,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted October 7, 2022
Portland, Oregon
Filed June 14, 2023
2 WILDEARTH GUARDIANS V. USFS
Before: John B. Owens and Eric D. Miller, Circuit Judges,
and Dean D. Pregerson,* District Judge.
Opinion by Judge Miller
SUMMARY**
Standing / Environmental Law
The panel affirmed the district court’s dismissal for lack
of standing of an action brought by three environmental
organizations against the United States Forest Service,
challenging livestock grazing decisions in the Colville
National Forest in Eastern Washington.
Plaintiffs alleged that the grazing decisions would lead
to an increase in the number of wolf attacks on livestock,
which in turn would cause the Washington Department of
Fish and Wildlife to kill more wolves. The Department is
permitted under Washington law to “authorize the removal
or killing of wildlife that is destroying or injuring property,
or when it is necessary for wildlife management or
research.” Wash. Rev. Code Ann. § 17.12.240(1).
To establish Article III standing, a plaintiff must show it
has suffered an injury in fact, the injury is fairly traceable to
the challenged action of the defendant, and it is likely that
*
The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILDEARTH GUARDIANS V. USFS 3
the injury will be redressed by a favorable decision. The
Service did not dispute that plaintiffs had a concrete interest
in the welfare of gray wolves in the Colville National
Forest. The key issues were whether any injury to the
wolves would be caused by allegedly unlawful conduct of
the Service and whether a change in that conduct would
redress that injury.
Here, the claimed injury arose from the actions of a third
party that is two steps removed from the Service. The
Service does not kill wolves, nor does it regulate those that
do. It regulates livestock grazing, but plaintiffs do not object
to grazing in itself. Rather, plaintiffs object to grazing
because it may lead to depredations, which may in turn lead
the Department to consider and in some cases exercise its
discretion to lethally remove wolves.
Plaintiffs alleged that many of their injuries involved
procedural rights, such as those created by the National
Environmental Policy Act. The panel held that the causation
and redressability requirements are relaxed for procedural
claims in the sense that a plaintiff need not establish the
likelihood that the agency would render a different decision
after going through the proper procedural steps. But a
plaintiff still must show a likelihood that the challenged
action, if ultimately taken, would threaten a plaintiff’s
interests. The panel held that plaintiffs had not shown that
the Service exerted the requisite effect on the Department’s
conduct. Because wolves in Eastern Washington are not
federally protected, the Service has no authority to require
the Department to do anything before it kills a wolf. Nor
does the Service participate in lethal removals.
Accordingly, the panel held that plaintiffs lacked
standing to assert their claims against the Service. The lethal
4 WILDEARTH GUARDIANS V. USFS
removal of wolves cannot be fairly traced to the Service’s
livestock grazing decisions, and a remedy that required the
Service to make different grazing decisions would not
redress the harm.
COUNSEL
Jennifer Schwartz (argued), Law Office of Jennifer R.
Schwartz, Portland, Oregon; Lauren M. Rule, Advocates for
the West, Portland, Oregon; Talasi B. Brooks, Western
Watersheds Project, Boise, Idaho; for Plaintiffs-Appellants.
Robert P. Stockman (argued), Andrew C. Mergen, Kevin
McArdle, and Michelle Spatz, Attorneys; Todd Kim,
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice;
Washington, D.C.; Emma Hamilton, Attorney; Environment
and Natural Resources Division, United States Department
of Justice; Denver, Colorado; Shaun M. Pettigrew,
NOAA/Damage Assessment, Seattle, Washington; for
Defendants-Appellees.
Chris A. Montgomery, Montgomery Law Firm, Colville,
Washington, for Intervenor-Defendant-Appellee.
Dominic M. Carollo, Carollo Law Group LLC, Roseburg,
Oregon, for Amicus Curiae Washington Cattleman’s
Association.
WILDEARTH GUARDIANS V. USFS 5
OPINION
MILLER, Circuit Judge:
When gray wolves prey on livestock in Washington
State, the Washington Department of Fish and Wildlife
may—or may not—kill the wolves involved: Under state
law, the decision whether to do so is committed to the
Department’s discretion. The United States Forest Service
oversees livestock grazing in the Colville National Forest in
Eastern Washington, but it does not regulate or participate in
the killing of wolves by the Department. Environmental
organizations concerned about the wolves sued the Forest
Service challenging its grazing decisions. They allege that
those decisions will lead to an increase in the number of wolf
attacks on livestock, which in turn will cause the Department
to kill more wolves. The district court dismissed the lawsuit
for lack of standing. We affirm.
I
The gray wolf was once widespread throughout North
America, including almost all of Washington. Habitat loss
and killing by humans reduced the population, and by the
1930s wolves had been extirpated from Washington.
Eventually, the gray wolf was listed as an endangered
species throughout most of the lower 48 States.
Reclassification of the Gray Wolf in the United States and
Mexico, with Determination of Critical Habitat in Michigan
and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978).
In the early 2000s, gray wolves began to repopulate
Washington. In 2009, the Northern Rocky Mountain wolf
population, which includes the wolves in Eastern
Washington, was removed from the federal list of
6 WILDEARTH GUARDIANS V. USFS
endangered species. Endangered and Threatened Wildlife
and Plants; Final Rule to Identify the Northern Rocky
Mountain Population of Gray Wolf as a Distinct Population
Segment and to Revise the List of Endangered and
Threatened Wildlife, 74 Fed. Reg. 15,123 (Apr. 2, 2009); see
Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1228
(D. Mont. 2010) (setting aside the delisting decision);
Department of Defense and Full-Year Continuing
Appropriations Act, 2011 § 1713, Pub. L. No. 112-10, 125Stat. 38, 150 (reinstating the delisting decision).
Although gray wolves in Eastern Washington are no
longer an endangered species under federal law, the State
continues to designate them as endangered. Wash. Admin.
Code § 220-610-010. Washington law generally prohibits
killing endangered species, but it permits the Department of
Fish and Wildlife to “authorize the removal or killing of
wildlife that is destroying or injuring property, or when it is
necessary for wildlife management or research.” Wash. Rev.
Code Ann. § 77.12.240(1); see id. § 77.15.120(1).
The Department has adopted a plan to promote the
recovery of gray wolves. See Wash. Admin. Code § 220-
610-110 ¶ 11.1. A stated goal of the plan is to “[m]anage
wolf-livestock conflicts in a way that minimizes livestock
losses, while at the same time not negatively impacting the
recovery or long-term perpetuation of a sustainable wolf
population.” The plan lays out circumstances in which the
Department may kill wolves to stop repeated depredations
on livestock. Killing wolves—which the Department refers
to as “lethal removal”—is acceptable under the plan “if it is
documented that livestock have clearly been killed by
wolves, non-lethal methods have been tried but failed to
resolve the conflict, depredations are likely to continue, and
there is no evidence of intentional feeding or unnatural
WILDEARTH GUARDIANS V. USFS 7
attraction of wolves by the livestock owner.” The
Department evaluates the need for lethal removal “on a case-
specific basis, with management decisions based on pack
history and size, pattern of depredations, number of livestock
killed, state listed status of wolves, extent of proactive
management measures being used on the property, and other
considerations.” In 2019, the Department killed nine wolves
in Washington.
This case involves the Colville National Forest, which
covers portions of Ferry, Stevens, and Pend Oreille Counties
in Eastern Washington. The Forest Service controls uses of
forest land, including for livestock grazing, through a forest
plan. 16 U.S.C. § 1604(a), (e). The Service implements the
plan by issuing permits to livestock owners that authorize
grazing in specified areas. 43 U.S.C. § 1752(a).
In 2019, the Service revised its plan for the Colville
National Forest. In response, three environmental
organizations—WildEarth Guardians, Western Watersheds
Project, and Kettle Range Conservation Group (collectively,
WildEarth)—brought this lawsuit against the Service.
WildEarth asserted claims under the National
Environmental Policy Act of 1969 (NEPA), Pub. L. No. 91-
190, 83 Stat. 852 (1970), and the National Forest
Management Act of 1976 (NFMA), Pub. L. No. 94-588, 90Stat. 2949. According to the complaint, the Service violated
those statutes by failing to consider “modifying grazing
management in order to mitigate recurring wolf-livestock
conflicts that result in the lethal removal of wolves from the
Colville National Forest.” In addition to challenging the
2019 forest plan as a whole, the complaint also alleged that
a specific authorization issued under that plan—the 2020
grazing authorization issued to Diamond M Ranch—was
8 WILDEARTH GUARDIANS V. USFS
unlawful because it lacked sufficient measures for reducing
wolf-livestock conflicts.
On cross-motions for summary judgment, the district
court granted summary judgment to the Service. It held that
WildEarth lacked Article III standing to bring its claims. The
district court reasoned that WildEarth had not shown that a
favorable decision would redress its injury because “the
lethal removal of gray wolves is the prerogative of the
[Department], a third party not before the Court.”
WildEarth appeals. For its part, the Service challenges
the district court’s decision to strike a document that
describes the Department’s protocol for responding to
conflicts between wolves and livestock. Because the
protocol is reflected elsewhere in the record, it is
unnecessary for us to consider the document, and we proceed
without it. See Southwest Ctr. for Biological Diversity v.
United States Forest Serv., 100 F.3d 1443, 1451 (9th Cir.
1996).
II
Article III of the Constitution gives federal courts the
power to decide only “Cases” and “Controversies.” U.S.
Const. art. III, § 2. Courts have “long understood that
constitutional phrase to require that a case embody a
genuine, live dispute between adverse parties.” Carney v.
Adams, 141 S. Ct. 493, 498 (2020). The doctrine of standing
helps ensure the necessary adversarial dispute. To establish
Article III standing, “a plaintiff must show (1) it has suffered
an ‘injury in fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
WILDEARTH GUARDIANS V. USFS 9
decision.” Association of Irritated Residents v. EPA, 10
F.4th 937, 943 (9th Cir. 2021) (quoting Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000)); see California v. Texas, 141 S. Ct. 2104, 2113
(2021).
The plaintiff has the burden of establishing standing
“with the manner and degree of evidence required at the
successive stages of the litigation.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). “Thus, at the summary
judgment stage, a plaintiff must offer evidence and specific
facts demonstrating each element.” Center for Biological
Diversity v. Export-Import Bank of the U.S., 894 F.3d 1005,
1012 (9th Cir. 2018). We review Article III standing de
novo. Save Bull Trout v. Williams, 51 F.4th 1101, 1105 (9th
Cir. 2022).
The Forest Service does not dispute that WildEarth has a
concrete interest in the welfare of gray wolves in the Colville
National Forest. WildEarth says that its members “gain
aesthetic enjoyment from observing . . . and studying wild
wolves” in the forest, and that they “have engaged in these
activities in the past, and intend to do so again in the near
future.” Harm to the wolves therefore inflicts an injury on
WildEarth’s members, satisfying the first component of the
standing test. See Lujan, 504 U.S. at 562–63 (“[T]he desire
to use or observe an animal species, even for purely esthetic
purposes, is undeniably a cognizable interest for purpose of
standing.”).
The key issues in this case are whether any injury to the
wolves would be caused by the allegedly unlawful conduct
of the Service, and, correspondingly, whether a change in
that conduct would redress that injury. Federal courts may
“act only to redress injury that fairly can be traced to the
10 WILDEARTH GUARDIANS V. USFS
challenged action of the defendant, and not injury that results
from the independent action of some third party not before
the court.” Simon v. Eastern Ky. Welfare Rights Org., 426
U.S. 26, 41–42 (1976). For that reason, “when the plaintiff
is not himself the object of the government action or inaction
he challenges, standing is not precluded, but it is ordinarily
‘substantially more difficult’ to establish.” Lujan, 504 U.S.
at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).
Here, the claimed injury arises from the actions of a third
party that is two steps removed from the Service. The
Service does not kill wolves, nor does it regulate those who
do. It regulates livestock grazing, but WildEarth does not
object to grazing in itself. Rather, WildEarth objects to
grazing because it may lead to depredations, which may in
turn lead the Department of Fish and Wildlife to consider
and in some cases exercise its discretion to lethally remove
wolves. Lethal removal, the direct cause of WildEarth’s
injury, is not regulated by the Service.
WildEarth emphasizes that many of its claims involve
procedural rights, such as those created by NEPA. It relies
on cases in which we have held that when a plaintiff alleges
a “procedural injury”—including the failure to comply with
NEPA—“the causation and redressability requirements are
relaxed.” Whitewater Draw Nat. Res. Conservation Dist. v.
Mayorkas, 5 F.4th 997, 1013 (9th Cir. 2021) (quoting
Western Watersheds Project v. Kraayenbrink, 632 F.3d 472,
485 (9th Cir. 2011)); see also Navajo Nation v. Department
of the Interior, 876 F.3d 1144, 1160 (9th Cir. 2017) (noting
that when a plaintiff alleges a procedural injury, the “‘normal
standards for . . . [the] immediacy’ of the injury are relaxed”
(alterations in original) (quoting Lujan, 504 U.S. at 572
n.7)).
WILDEARTH GUARDIANS V. USFS 11
But the causation and redressability requirements are
“relaxed” for procedural claims only in the sense that a
plaintiff “need not establish the likelihood that the agency
would render a different decision after going through the
proper procedural steps.” Export-Import Bank, 894 F.3d at
1012; see Lujan, 504 U.S. at 572 n.7. “Because ‘NEPA itself
does not mandate particular results, but simply prescribes the
necessary process’ by which an agency considers the impact
of its proposed action on the environment,” it would make
little sense to say that a plaintiff could challenge an agency’s
failure to comply with NEPA only by showing that
compliance would necessarily have led to a different
decision. Whitewater Draw Nat. Res. Conservation Dist., 5
F.4th at 1013 (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989)). Even so, a “deprivation
of a procedural right without some concrete interest that is
affected by the deprivation—a procedural right in vacuo—is
insufficient to create Article III standing.” Summers v. Earth
Island Inst., 555 U.S. 488, 496 (2009). A plaintiff still must
show “a likelihood that the challenged action, if ultimately
taken, would threaten a plaintiff’s interests.” Navajo Nation,
876 F.3d at 1161. And even for procedural claims, when “an
‘asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else,
much more is needed’ to demonstrate causation and
redressability.” Whitewater Draw Nat. Res. Conservation
Dist., 5 F.4th at 1013 (quoting Lujan, 504 U.S. at 562); see
Food & Water Watch v. USDA, 1 F.4th 1112, 1116 n.2 (D.C.
Cir. 2021) (“The relaxation of redressability standards for
procedural injuries . . . applies only to the Agency’s actions,
not to third parties not before the court.”).
“Where an essential element of standing depends on the
reaction of a third party to the requested government action
12 WILDEARTH GUARDIANS V. USFS
or inaction, ‘it becomes the burden of the plaintiff to adduce
facts showing that those choices have been or will be
made.’” Export-Import Bank, 894 F.3d at 1012 (quoting
Lujan, 504 U.S. at 562). A plaintiff can do so by showing
that the defendant’s action exerts a “determinative or
coercive effect” on the third-party conduct that directly
causes the injury. Bennett v. Spear, 520 U.S. 154, 169
(1997); see Turaani v. Wray, 988 F.3d 313, 316 (6th Cir.
2021) (“An indirect theory of traceability requires that the
government cajole, coerce, command.”). More specifically,
the defendant’s action could have such an effect if the
defendant had “clear regulatory authority over the third party
who more directly caused the plaintiff’s injury” or was “an
integral participant in a third-party’s allegedly harmful
action.” Export-Import Bank, 894 F.3d at 1013.
WildEarth has not shown that the Service exerts the
requisite effect on the Department’s conduct. As we have
explained, the Forest Service does not regulate lethal
removals. Because wolves in Eastern Washington are not
federally protected, the Service has no authority to require
the Department to do anything before killing a wolf.
Nor does the Service participate in lethal removals.
WildEarth argues that the Service’s grazing decisions are “at
least a substantial factor motivating” the Department’s
decisions to remove wolves. Novak v. United States, 795
F.3d 1012, 1019 (9th Cir. 2015) (quoting Mendia v. Garcia,
768 F.3d 1009, 1013 (9th Cir. 2014)). But in fact, the
Department defines its own lethal removal criteria, and it
assesses the need for lethal removal case-by-case, “based on
pack history and size, pattern of depredations, number of
livestock killed, state listed status of wolves, extent of
proactive management measures being used on the property,
and other considerations.” Those considerations do not
WILDEARTH GUARDIANS V. USFS 13
include the Service’s actions. And if the Department
concludes that lethal removal is warranted, the agency
carries out any wolf killings without the involvement of the
Service.
WildEarth relies on various cases in which plaintiffs
established standing to challenge government action even
though the injury was inflicted by a third party, but in many
of those cases, the governmental defendant had authority to
regulate the third party. For example, in Center for
Biological Diversity v. United States Fish & Wildlife
Service, the Fish and Wildlife Service executed an
agreement with third parties about groundwater pumping,
and the terms of that agreement allegedly injured the
plaintiff’s concrete interest in an endangered fish. 807 F.3d
1031, 1044 (9th Cir. 2015). Although the injury was caused
by the actions of third parties (pumping groundwater), the
plaintiffs had standing to sue the Fish and Wildlife Service
because the Service had authority to regulate those actions
through its agreement with the third parties. See id.Similarly, in Idaho Conservation League v. Mumma, the
plaintiffs had standing to challenge the decision of the Forest
Service not to exercise its authority to recommend
designating forest areas as wilderness, directly harming the
plaintiffs’ recreational interest in undisturbed nature. 956
F.2d 1508, 1517–18 (9th Cir. 1992). The injury was caused
by development carried out by third parties, but the Forest
Service regulated whether that development could occur. See
id. at 1518.
In the other cases on which WildEarth relies, the
defendant participated in the third party’s harmful conduct.
For example, in Western Watersheds Project v. Grimm, we
recognized standing when the federal agency defendant
killed gray wolves in Idaho at the direction of a third-party
14 WILDEARTH GUARDIANS V. USFS
state agency. 921 F.3d 1141, 1148–49 (9th Cir. 2019).
Similarly, in WildEarth Guardians v. United States
Department of Agriculture, we recognized standing when
the federal agency defendant and the State of Nevada
worked together to lethally remove coyotes and ravens. 795
F.3d 1148, 1156–59 (9th Cir. 2015). The Forest Service’s
role here does not compare. The Service does not participate
in the lethal removal of wolves in the Colville National
Forest in any capacity.
Because the Forest Service does not regulate or
participate in lethal removal, we cannot say the agency has a
“determinative or coercive effect” on the harmful conduct of
the Department of Fish and Wildlife. Bennett, 520 U.S. at
169. The Department inflicts the injury of its own accord. So
the lethal removal of wolves cannot fairly be traced to the
Service’s livestock grazing decisions, and a remedy that
required the Service to make different grazing decisions
would not redress the harm. Because the injury “depends on
the unfettered choices made by independent actors not
before the courts and whose exercise of broad and legitimate
discretion the courts cannot presume either to control or to
predict,” WildEarth lacks standing to assert its claims
against the Service. ASARCO Inc. v. Kadish, 490 U.S. 605,
615 (1989).
AFFIRMED.