Wildearth Guardians v. Usda-Aphis , 795 F.3d 1148 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDEARTH GUARDIANS, No. 13-16071
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-00716-
MMD-PAL
UNITED STATES DEPARTMENT OF
AGRICULTURE, Animal and Plant
Health Inspection Service, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Argued and Submitted
March 9, 2015—San Francisco, California
Filed August 3, 2015
Before: M. Margaret McKeown, Mary H. Murguia, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
2 WILDEARTH GUARDIANS V. USDA
SUMMARY *
Environmental Law
The panel reversed the district court’s order dismissing a
case brought by WildEarth Guardians, alleging violations of
the National Environmental Policy Act, and seeking to
enjoin the federal government’s participation in the killing
of predatory animals in Nevada.
The district court dismissed for lack of standing, holding
that WildEarth had not shown that its alleged injuries were
caused by the government’s reliance on a decades-old
programmatic environmental impact statement (“PEIS”);
and that, in any event, WildEarth’s injuries were not
redressable where Nevada could choose to implement an
independent predator damage management program if the
federal government ceased its activities.
The panel held that both of the district court’s reasons for
dismissal were erroneous. Concerning Claims One and Two,
which challenged the government’s failure to supplement
the 1994/1997 PEIS for its predator damage programs
nationwide, the panel held that the injuries WildEarth
member Don Molde alleged were concrete enough, and were
sufficiently causally related to the government’s failure to
update the PEIS, to support WildEarth’s standing for those
claims.
*
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. USDA 3
Concerning Claims Three and Four, which alleged that
the government violated the National Environmental Policy
Act by preparing an inadequate environmental assessment
for Nevada and consequently failing to prepare a Nevada-
specific Environmental Impact Statement, the panel held that
the standing requirements were met and WildEarth member
Don Molde’s injury was redressable. The panel held that the
mere existence of multiple causes of an injury did not defeat
redressability, particularly for a procedural injury.
COUNSEL
Ashley D. Wilmes (argued), WildEarth Guardians,
Louisville, Colorado, for Plaintiff-Appellant.
Robert G. Dreher, Acting Assistant Attorney General; Emily
A. Polachek (argued), Andrew C. Mergen, J. David Gunter
II, and Brian Collins, United States Department of Justice,
Environment and Natural Resources Division, Washington,
D.C.; Annalisa Jabaily, and Lauren Axley, United States
Department of Agriculture, Office of General Counsel,
Washington, D.C., for Respondent-Appellee.
Rebecca J. Riley, Natural Resources Defense Council,
Chicago, Illinois, for Amici Curiae Natural Resources
Defense Council, Defenders of Wildlife, Predator Defense,
TrailSafe Nevada, Northeast Oregon Ecosystems, Center for
Biological Diversity, Southwest Environmental Center,
Friends of Animals, Mark E. Smith Foundation, Western
Watersheds Project, and Boulder-White Clouds Council.
4 WILDEARTH GUARDIANS V. USDA
Thomas M. Gremillion and Hope M. Babcock, Institute for
Public Representation, Washington, D.C., for Amici Curiae
Professors of Environmental Law.
OPINION
FRIEDLAND, Circuit Judge:
Environmental organization WildEarth Guardians sued
to enjoin the federal government’s participation in the killing
of predatory animals in Nevada. WildEarth alleged that the
program’s continued reliance on a decades-old
programmatic environmental impact statement (“PEIS”)
causes the government to use outdated and unnecessarily
harmful predator control techniques that interfere with
WildEarth’s members’ enjoyment of outdoor activities. The
district court dismissed for lack of standing, holding that
WildEarth had not shown that its alleged injuries were
caused by the government’s reliance on the PEIS, and that,
in any event, Nevada could choose to implement an
independent predator damage management program if the
federal government ceased its activities, so WildEarth’s
injuries were not redressable. Both of these reasons for
dismissal were erroneous, so we reverse.
I. Background
A. National Environmental Policy Act
The National Environmental Policy Act (“NEPA”)
requires federal agencies to assess and publicly disclose the
environmental impacts of proposed federal actions.
42 U.S.C. §§ 4321-4347. For federal actions that
WILDEARTH GUARDIANS V. USDA 5
“significantly affect[] the quality of the human
environment,” the agency must develop an environmental
impact statement (“EIS”) that “provide[s] full and fair
discussion of significant environmental impacts” and
“inform[s] decisionmakers and the public of the reasonable
alternatives which would avoid or minimize adverse impacts
or enhance the quality of the human environment.” 42
U.S.C. § 4332(C); 40 C.F.R. § 1502.1. When it is unclear
whether the federal action will have a significant effect on
the environment, the agency must prepare an “environmental
assessment” to determine whether an EIS is required. 40
C.F.R. § 1501.4(b). If, after completing the environmental
assessment, the agency decides not to prepare an EIS, the
agency must prepare a “finding of no significant impact” to
explain its decision. Id. § 1501.4(e).
An agency with an existing EIS must supplement it if the
“agency makes substantial changes in the proposed action
that are relevant to environmental concerns” or if “[t]here are
significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action
or its impacts.” Id. § 1502.9(c)(1). “If there remains major
Federal action to occur, and if the new information is
sufficient to show that the remaining action will affect the
quality of the human environment in a significant manner or
to a significant extent not already considered, a supplemental
EIS must be prepared.” Marsh v. Or. Natural Res. Council,
490 U.S. 360, 374 (1989) (brackets omitted).
6 WILDEARTH GUARDIANS V. USDA
B. APHIS and Its 1994/1997 Programmatic
Environmental Impact Statement
The United States Department of Agriculture is
authorized to protect the nation’s agricultural resources from
damage associated with predatory wildlife. See 7 U.S.C.
§§ 426-426c. The Department’s Animal and Plant Health
Inspection Service (“APHIS”) carries out wildlife control
programs through Wildlife Services. 1 See 7 C.F.R. §§ 371.6,
371.11. APHIS conducts its programs in cooperation with
other federal, state, and local agencies, as well as with
private organizations and individuals.
In 1994, APHIS assessed the environmental impact of its
full program of ongoing wildlife damage control nationwide
and issued an EIS, referred to as a “programmatic EIS”
(“PEIS”). The PEIS was revised in 1997 to make technical
corrections. The 1994/1997 PEIS discusses thirteen
alternatives for wildlife management and identifies a
preferred approach—the “Current Program Alternative.” 2
Rather than requiring the preferred approach to be
implemented nationwide, however, the Record of Decision
for the PEIS identifies five “viable alternatives discussed” in
1
Wildlife Services was formerly called Animal Damage Control.
2
The Record of Decision in the Federal Register defines this
alternative: “The current program (the integrated pest management
alternative) . . . consists of various practices and techniques, including
both nonlethal and lethal actions, that are available for formulating a
damage control strategy consistent with applicable State and local
requirements, cooperative agreements, and interagency arrangements.”
Animal Damage Control Program, Record of Decision Based on Final
Environmental Impact Statement, 60 Fed. Reg. 13399, 13400 (Mar. 13,
1995).
WILDEARTH GUARDIANS V. USDA 7
the PEIS and states that they would be forwarded to regional
and local decision makers “for consideration as management
approaches.” Animal Damage Control Program, Record of
Decision Based on Final Environmental Impact Statement,
60 Fed. Reg. 13,399, 13,400 (Mar. 13, 1995).
C. Predator Damage Control Activities in Nevada
APHIS and the Nevada Department of Wildlife currently
share responsibility for predator damage control in Nevada.
Together, the two form the Nevada Wildlife Services
Program (“NWSP”). NWSP has been conducting predator
damage management in Nevada for over eighty years.
APHIS provides significant funding, staffing, and
supervision for NWSP’s activities. Nevada also provides
some funding and personnel.
In 2010, the then-Director of the Nevada Department of
Wildlife, Kenneth Mayer, wrote a letter to APHIS (the
“Mayer Letter”) stating that, if APHIS stopped conducting
predator damage management in Nevada, the Nevada
Department of Wildlife would retain statutory responsibility
for wildlife control and would either “carry out the
management of wildlife with existing personnel or contract
the work to other capable entities.”
In June 2011, APHIS issued an environmental
assessment for NWSP’s ongoing predator damage
management program in Nevada. The 2011 environmental
assessment incorporated by reference APHIS’s 1994/1997
PEIS.
The assessment considered five alternatives for predator
management in Nevada, including ending federal
involvement. The assessment stated that, if federal
8 WILDEARTH GUARDIANS V. USDA
involvement ceased, Nevada likely would engage in some
predator damage management, but that it was “unlikely” that
Nevada would conduct predator control at the level of the
current program. The assessment noted that the effects on
the environment of ceasing federal involvement were
uncertain because they would depend on the actions of
private individuals, who might attempt predator
management on their own. The assessment nevertheless
made some predictions about the likely rates of certain
methods of predator control. Specifically, the assessment
stated that the killing of ravens (a Nevada predator) “would
be likely to decrease substantially” because Nevada would
not have access to the same avicide used by APHIS. The
assessment further hypothesized that ending federal
involvement would greatly reduce aerial hunting of predator
species, but would increase other forms of predator hunting.
Ultimately, the 2011 environmental assessment
concluded that continuing the joint APHIS-Nevada predator
damage management program would not have significant
environmental impacts, but that monitoring of the program’s
impacts on wildlife populations should continue. APHIS
issued a finding of no significant impact and therefore did
not order a Nevada-specific EIS.
D. Litigation History
WildEarth sued APHIS in 2012, asserting four claims
based on alleged violations of NEPA and one claim under
the Wilderness Act, 16 U.S.C. § 1131 et seq. WildEarth
sought injunctive and declaratory relief. WildEarth alleged
that the data, science, and analysis used in the PEIS were
based on studies from the 1970s and 1980s that have been
called into question by more recent research. Claims One
and Two alleged, respectively, that APHIS’s failure to
WILDEARTH GUARDIANS V. USDA 9
supplement the 1994/1997 PEIS for its predator damage
programs nationwide is (1) arbitrary, capricious, an abuse of
discretion, not in accordance with law, or without
observance of procedures required by law, 5 U.S.C.
§ 706(2)(A), (D); and (2) an agency action unlawfully
withheld or unreasonably delayed, id. § 706(1). Claim Three
alleged that the 2011 Nevada environmental assessment was
inadequate under NEPA, and Claim Four alleged that the
2011 Nevada finding of no significant impact was arbitrary
and capricious, or without observance of procedures
required by law, id. § 706(2)(A), (D). Claim Five alleged
that the NWSP’s aerial hunting practices violate the
Wilderness Act.
APHIS moved to dismiss Claims One through Four
under Federal Rule of Civil Procedure 12(b)(1) for lack of
standing, arguing that WildEarth had not alleged that any of
its members had suffered a concrete, redressable harm.
APHIS additionally asserted that Claims One, Two, and Five
should be dismissed under Rule 12(b)(6) for failure to state
a claim.
In response to APHIS’s motion to dismiss, WildEarth
submitted a declaration from Don Molde, a WildEarth
member, who engages in outdoor recreation in parts of
Nevada affected by NWSP’s predator control. 3 Molde’s
declaration described his frequent recreational use of areas
in Nevada impacted by NWSP’s activities, his plans to
continue visiting those areas, and the negative effect of
3
WildEarth also submitted a declaration from another member, George
Weurthner, whose injuries were substantially the same as Molde’s for
purposes relevant here. For convenience, and because Molde’s injuries
are sufficient to support standing, we discuss only Molde’s declaration.
10 WILDEARTH GUARDIANS V. USDA
NWSP’s predator damage management on his recreational
and aesthetic enjoyment of the impacted areas. For example,
Molde stated that he has curtailed his walks with his dog for
fear that the dog would be caught in NWSP’s predator traps.
Molde further described how NWSP’s activities reduce the
number of ravens that he is able to observe during his bird-
watching, and how NWSP’s aerial hunting practices reduce
his chances of seeing coyotes.
The district court dismissed Claims One through Four for
lack of standing. With respect to Claims One and Two, the
district court concluded that WildEarth had not alleged a
sufficiently concrete injury traceable to APHIS’s 1994/1997
PEIS. Regarding Claims Three and Four, the district court
concluded that WildEarth’s injury was not redressable
because the Mayer Letter indicated that Nevada would carry
out predator damage management even if APHIS was
enjoined from engaging in predator control in Nevada.
The district court denied the motion to dismiss Claim
Five, but WildEarth then voluntarily dismissed that claim so
that it could immediately appeal the standing holdings.
II. Standard of Review
“We review a motion to dismiss for lack of standing de
novo, construing the factual allegations in the complaint in
favor of the plaintiffs.” Mont. Shooting Sports Ass’n v.
Holder, 727 F.3d 975, 979 (9th Cir. 2013). A plaintiff has
the burden to establish that it has standing. Salmon
Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1225
(9th Cir. 2008).
WILDEARTH GUARDIANS V. USDA 11
III. Discussion
To establish standing, a plaintiff must show that “(1) he
or she has suffered an injury in fact that is concrete and
particularized, and actual or imminent; (2) the injury is fairly
traceable to the challenged conduct; and (3) the injury is
likely to be redressed by a favorable court decision.” Salmon
Spawning, 545 F.3d at 1225 (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)).
To demonstrate standing to bring a procedural claim—
such as one alleging a NEPA violation—a plaintiff “must
show that the procedures in question are designed to protect
some threatened concrete interest of his that is the ultimate
basis of his standing.” W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011). For an
environmental interest to be “concrete,” there must be a
“geographic nexus between the individual asserting the
claim and the location suffering an environmental impact.”
Id. “[E]nvironmental plaintiffs adequately allege injury in
fact when they aver that they use the affected area and are
persons for whom the aesthetic and recreational values of the
area will be lessened by the challenged activity.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,
183 (2000). Once plaintiffs seeking to enforce a procedural
requirement establish a concrete injury, “the causation and
redressability requirements are relaxed.” W. Watersheds
Project, 632 F.3d at 485. “Plaintiffs alleging procedural
injury must show only that they have a procedural right that,
if exercised, could protect their concrete interests.” Salmon
Spawning, 545 F.3d at 1226.
12 WILDEARTH GUARDIANS V. USDA
A. The Claims Challenging the 1994/1997 PEIS
The district court dismissed Claims One and Two,
holding that WildEarth had not shown that any of its
members had a concrete injury caused by the PEIS. But the
injuries Molde alleges are concrete enough, and are
sufficiently causally related to APHIS’s failure to update the
PEIS, to support WildEarth’s standing for Claims One and
Two.
“An association has standing to bring suit on behalf of
its members when its members would otherwise have
standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Friends of the Earth,
528 U.S. at 181 (citing Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)). As to the second and
third prongs, it is clear that Molde’s interest in recreational
and aesthetic enjoyment of predators in the Nevada
wilderness is related to WildEarth’s purposes of “protecting
and restoring wildlife” and “carnivore protection.” And
neither WildEarth’s claims for procedural violations of
NEPA nor its requested relief require the participation of any
individual WildEarth members. The only dispute is over the
first prong—whether the harm to Molde satisfies the
concrete injury-in-fact, causation, and redressability
requirements for standing. We therefore focus on those
issues.
Molde’s injury is his reduced recreational and aesthetic
enjoyment of areas in Nevada impacted by NWSP’s predator
damage management programs. His declaration names
specific wilderness areas in Nevada that he has visited and
has specific plans to visit again. The declaration states that
WILDEARTH GUARDIANS V. USDA 13
NWSP’s predator control negatively impacts Molde’s
enjoyment of those areas by causing him to curtail his
recreational activities and reducing his likelihood of seeing
predators, including coyotes and ravens. This satisfies the
injury-in-fact requirement. See Ctr. for Biological Diversity
v. Kempthorne, 588 F.3d 701, 707–08 (9th Cir. 2009)
(holding that a declaration from plaintiffs that they have
viewed animals in the affected region previously, enjoy
doing so, and have plans to return satisfies the requirement
for a concrete injury in fact with geographic nexus to the
challenged action).
Because WildEarth seeks to enforce a procedural right
under NEPA, the requirements for causation and
redressability are relaxed. W. Watersheds Project, 632 F.3d
at 485. Under that relaxed standard, WildEarth’s
allegations, based on Molde’s experience, are sufficient to
support standing. WildEarth alleges that APHIS implements
its predator damage management programs pursuant to the
1994/1997 PEIS, and that APHIS has improperly failed to
update that PEIS. The Record of Decision for the final PEIS
specifically states that APHIS will rely on information from
the final PEIS for NEPA compliance. 60 Fed. Reg. 13,399,
13,400. Indeed, the Nevada environmental assessment did
incorporate the 1994/1997 PEIS. This is a sufficient causal
link between APHIS’s alleged procedural violations of
NEPA and Molde’s injury to satisfy the relaxed causation
requirement for procedural claims. See Salmon Spawning,
545 F.3d at 1229 (holding that causation is satisfied under
the relaxed requirements for procedural claims when “[t]he
asserted injury is not too tenuously connected to the
agencies’ failure” to take action).
Contrary to APHIS’s arguments, the fact that the PEIS
also applies to programs in states for which WildEarth has
14 WILDEARTH GUARDIANS V. USDA
not submitted member declarations does not prevent
WildEarth from challenging the continued use of the PEIS.
WildEarth has adequately alleged that Molde’s injury in
Nevada is caused by the failure to update the PEIS, which is
sufficient to allow WildEarth to challenge that failure to
update. That the PEIS also applies to other geographic
regions that Molde does not visit is irrelevant to the standing
analysis. See Res. Ltd., Inc. v. Robertson, 35 F.3d 1300,
1303 (9th Cir. 1994) (“[I]f plaintiffs did not have standing to
challenge a non-site-specific EIS, the program as a whole
could never be reviewed. To the extent that the plan pre-
determines the future, it represents a concrete injury that
plaintiffs must, at some point, have standing to challenge.”);
Idaho Conservation League v. Mumma, 956 F.2d 1508,
1515-18 (9th Cir. 1992) (holding that the plaintiffs had
standing to challenge a non-site-specific EIS that caused
their injury in fact); see also Alaska Ctr. for Env’t v.
Browner, 20 F.3d 981, 985 (9th Cir. 1994) (upholding
standing for challenge to statewide failure to regulate water
quality when the plaintiffs alleged specific injury relating to
some, but not all, streams within Alaska).
Molde’s injury also satisfies the relaxed redressability
requirement for procedural claims. This requirement is
satisfied when “the relief requested—that the agency follow
the correct procedures—may influence the agency’s
ultimate decision.” Salmon Spawning, 545 F.3d at 1226.
This relaxed redressability standard governs procedural
challenges to programmatic actions as well as to specific
implementing actions. See Cottonwood Envtl. Law Ctr. v.
U.S. Forest Serv., Nos. 13-35624, 13-35631, 2015 WL
3756708, at *6 (9th Cir. June 17, 2015) (“As in Salmon
Spawning, Cottonwood’s allegation of a procedural injury
relaxes its burden of showing causation and redressability.
WILDEARTH GUARDIANS V. USDA 15
Cottonwood need not show that [the procedures sought]
would lead to a different result at either the programmatic or
project-specific level.”) (internal citation omitted). Here,
updating the PEIS could influence APHIS’s predator
damage management in Nevada, which is sufficient to
satisfy the redressability requirement for standing for a
procedural claim.
Because Molde would have standing to bring Claims
One and Two on his own, and WildEarth also satisfies the
other associational standing requirements, WildEarth has
standing for Claims One and Two. 4
B. The Nevada-Specific Claims
Claims Three and Four allege that APHIS violated
NEPA by preparing an inadequate environmental
assessment for Nevada and consequently failing to prepare a
Nevada-specific EIS. In support, WildEarth argues that
APHIS’s Nevada analysis was deficient because, among
other things, it failed to analyze the environmental impacts
of trapping, aerial hunting, and avicide use—all practices
that Molde contends negatively impact his aesthetic and
recreational enjoyment of affected areas in Nevada. The
district court dismissed these claims for lack of
4
APHIS alternately asks us to affirm the district court’s dismissal of
Claims One and Two under Rule 12(b)(6) for failure to state a claim upon
which relief may be granted. The district court has yet to address this
issue, and we decline to reach it in the first instance. See Am. President
Lines, Ltd. v. Int’l Longshore & Warehouse Union, Alaska Longshore
Div., Unit 60, 721 F.3d 1147, 1157 (9th Cir. 2013) (“It is the general rule
. . . that a federal appellate court does not consider an issue not passed
upon below.”).
16 WILDEARTH GUARDIANS V. USDA
redressability. Specifically, the district court held that the
Mayer Letter, which asserted that Nevada would perform
predator damage management independently if APHIS were
to withdraw from Nevada, demonstrated that enjoining
APHIS would not redress WildEarth’s injury.
For the same reasons discussed above, WildEarth meets
the injury-in-fact and causation requirements for standing to
challenge APHIS’s predator damage management activities
in Nevada based on Molde’s injuries, as well as the other
requirements for associational standing. The only question
in dispute is whether Molde’s injury is redressable. We hold
that it is.
APHIS argues that, if WildEarth prevailed on Claims
Three and Four, APHIS would have to cease its predator
management activities in Nevada altogether at least until a
new environmental assessment was completed. On the basis
of this premise, which we accept as true, 5 APHIS’s primary
argument against redressability is that, if federal
involvement in predator management in Nevada ceased as a
result of this lawsuit, Nevada would pick up where the
federal government left off. APHIS argues that Nevada’s
current participation in NWSP’s predator control activities
and its legal authority to conduct predator control make
Nevada an independent cause of the underlying injury,
5
We note that if APHIS’s activities would only be altered rather than
halted if WildEarth prevailed, there is no question that WildEarth’s
injury would be redressable. Partial relief through a reduction in
APHIS’s activities would qualify as redress for standing purposes,
Meese v. Keene, 481 U.S. 465, 476–77 (1987), and APHIS has not even
argued that Nevada would step in to fill a gap left by a reduction in
federal activity rather than a cessation.
WILDEARTH GUARDIANS V. USDA 17
rendering Molde’s injury not redressable by relief against
APHIS. But the mere existence of multiple causes of an
injury does not defeat redressability, particularly for a
procedural injury. So long as a defendant is at least partially
causing the alleged injury, a plaintiff may sue that defendant,
even if the defendant is just one of multiple causes of the
plaintiff’s injury.
The Supreme Court applied this principle in
Massachusetts v. EPA, 549 U.S. 497, 525–26 (2007).
Massachusetts, along with several other plaintiffs, had
brought a procedural challenge to EPA’s failure to regulate
greenhouse gas emissions from new motor vehicles. Id. at
505. The underlying concrete injury—harms to
Massachusetts and its citizens from climate change caused
by greenhouse gas emissions—had multiple causes. EPA
pointed to the fact that there were numerous contributors to
greenhouse gas emissions, including developing nations
such as China and India. Id. at 523–24. EPA further argued
that “predicted increases in greenhouse gas emissions from
developing nations . . . [were] likely to offset any marginal
domestic decrease” that would result from the type of
regulations Massachusetts sought. Id. Nevertheless, the
Court held that Massachusetts satisfied the relaxed
redressability requirement for procedural claims because a
favorable decision by the EPA could reduce “to some
extent” the risk posed by global warming. Id. at 526.
In Salmon Spawning, we likewise held that the plaintiffs
had standing to bring a procedural claim for prospective
relief based on the United States’ alleged failure to engage
in procedures under the Endangered Species Act that might
lead to changes in future salmon harvesting practices. 545
F.3d at 1229. Although salmon harvesting was carried out
by both the United States and Canada pursuant to the terms
18 WILDEARTH GUARDIANS V. USDA
of a treaty, the existence of two causes of the plaintiffs’
injury did not defeat redressability. 6 Id.
Similarly, in Barnum Timber Co. v. EPA, we held that a
litigant challenging an agency action “need not eliminate any
other contributing causes to establish its standing.” 633 F.3d
894, 901 (9th Cir. 2011). The relevant inquiry is instead
whether a favorable ruling could redress the challenged
cause of the injury. See id. Specifically, in Barnum we
concluded that a landowner had standing to sue EPA because
EPA regulations decreased the landowner’s property’s
value, even though California also regulated the property in
question. Id. at 900–01 & n.4. We stated that “[w]hether
Barnum might have a cause of action against California does
not affect whether Barnum has standing to sue EPA, just as
whether Barnum will be successful on the merits in its suit
against EPA does not affect whether Barnum has standing to
pursue such a suit.” Id. at 900 n.4; see also id. at 901 (“We
do not think Barnum must allege that EPA is the sole source
of the devaluation of its property.”).
Nuclear Information and Resource Service v. Nuclear
Regulatory Commission (“NIRS”), 457 F.3d 941 (9th Cir.
2006), upon which APHIS relies, is not to the contrary. In
NIRS, we held that the plaintiffs had not alleged a concrete
injury caused by the challenged Nuclear Regulatory
Commission (“NRC”) regulation, because none of the
declarations from the plaintiff association’s members
6
In contrast to the prospective claim in Salmon Spawning, the
retrospective claims were not redressable because the remedy sought was
the undoing of a treaty with Canada, and the court could not influence
the decision, which had already been made by the Executive Branch, to
enter into that treaty. 545 F.3d at 1225–29.
WILDEARTH GUARDIANS V. USDA 19
“explain[ed] in any way how [the members’] health may be
affected by this regulation,” and because the plaintiff
association’s “interest (even if sufficiently concrete) in the
health of its members also appear[ed] to be served, not
harmed, by the enactment of the new regulations.” Id. at
953, 954. We emphasized that this lack of injury was
“dispositive of [the] appeal.” Id. at 951. We went on to
explain, however, that to the extent the plaintiffs were
harmed by the existence of the NRC regulation, their injury
was no longer redressable because the Department of
Transportation had a regulation identical in effect to the
challenged NRC regulation, and the statute of limitations for
any challenge to the Department of Transportation
regulation had already run. Id.at 955; Nuclear Info. & Res.
Serv. v. U.S. Dep’t of Transp. Research & Special Programs
Admin., 457 F.3d 956, 962–63 (9th Cir. 2006). In contrast,
here, Nevada does not already have an independent predator
damage management program that is entirely redundant with
APHIS’s in terms of its effect on WildEarth. And, even if
Nevada did have such a program, nothing suggests that
litigation challenging it would be time barred or otherwise
precluded.
Nor does Washington Environmental Council v. Bellon,
732 F.3d 1131 (9th Cir. 2013), show that redressability is
lacking here. In Bellon, we held that plaintiffs alleging
concrete injuries from climate change had not satisfied the
causation and redressability requirements for standing to
challenge a failure to adequately regulate oil refineries in
Washington because the alleged link between the absence of
such regulation and climate change was too tenuous. Id. at
1141–47. Bellon did not involve a procedural right, so the
redressability requirements there were not relaxed in the way
they are here. Id. at 1145 (distinguishing Massachusetts v.
20 WILDEARTH GUARDIANS V. USDA
EPA on the ground that it involved a “procedural right”). In
addition, causation was lacking because the defendant oil
refineries were such minor contributors to global greenhouse
gas emissions, and the independent third-party causes of
climate change were so numerous, that the contribution of
the defendant oil refineries was “scientifically
indiscernible.” Id. at 1143–44. Molde’s injury, in contrast,
has at most two causes, and APHIS contributes very
discernibly to that injury. It is the program led by APHIS
that is carrying out the hunting, trapping, poisoning, and
other acts of predator damage management that detract from
Molde’s enjoyment of the outdoors.
The conclusion that Molde’s (and thus WildEarth’s)
injury is redressable is bolstered by the fact that any
independent predator damage management activities by
Nevada are hypothetical rather than actual. What, if any, the
extent of a Nevada predator damage management program
would be if APHIS stopped its activity in Nevada is entirely
a matter of speculation because Nevada currently has no
such independent program. Nevada has stated, through the
Mayer Letter, that it would implement some form of predator
damage management if APHIS withdrew from Nevada. But
the Mayer Letter states only that the Nevada Department of
Wildlife would retain statutory responsibility for predator
management if APHIS ceased its involvement. It does not
describe what the Department of Wildlife would do to carry
out that responsibility on its own. Nevada might adopt
practices that would be less harmful to WildEarth’s interests,
or it might devote less funding to predator damage
management than APHIS currently provides. Indeed, the
Nevada environmental assessment found that, at a minimum,
a Nevada-run program likely would greatly reduce aerial
hunting and the killing of ravens, both of which would
WILDEARTH GUARDIANS V. USDA 21
partially redress Molde’s injuries. The notion that Nevada
would replace everything APHIS currently does is therefore
speculative at best. Such speculation does not defeat
standing. Seattle Audubon Soc’y v. Espy, 998 F.2d 699, 703
(9th Cir. 1993) (“Speculation that logging might not occur
because of as yet unknown intervening circumstances, or
because redrafting the EIS might not change the Secretary’s
decision to adopt [the challenged policy] as its owl
management plan is not relevant to standing.”).
IV. Conclusion
For the foregoing reasons, we REVERSE the district
court’s order dismissing this case for lack of standing and
REMAND for further proceedings. 7
7
We address WildEarth’s requests for jurisdictional discovery and
judicial notice in a concurrently filed order.