Western Watersheds Project v. Todd Grimm ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT; No. 18-35075
CENTER FOR BIOLOGICAL DIVERSITY;
FRIENDS OF THE CLEARWATER; D.C. No.
WILDEARTH GUARDIANS; PREDATOR 1:16-cv-00218-
DEFENSE, EJL-CWD
Plaintiffs-Appellants,
v. OPINION
TODD GRIMM, Idaho Director,
Wildlife Services; USDA WILDLIFE
SERVICES,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted March 4, 2019
Portland, Oregon
Filed April 23, 2019
2 WESTERN WATERSHEDS PROJECT V. GRIMM
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim, * Chief District Judge.
Opinion by Chief District Judge Tunheim
SUMMARY **
Environmental Law / Article III Standing
The panel reversed the district court’s dismissal for lack
of Article III standing of an action brought by plaintiff
conservationist groups to enjoin the federal government’s
participation in the killing of gray wolves in Idaho pending
additional analysis under the National Environmental Policy
Act.
The panel analyzed the requirements of Article III
standing that plaintiffs had the burden of establishing.
First, the panel held that eight declarations from
plaintiffs’ members describing how USDA Wildlife
Services’ wolf-killing activities threatened their aesthetic
and recreational interests in tracking and observing wolves
in the wild fell under the scope of NEPA’s protections, and
established injury-in-fact.
*
The Honorable John R. Tunheim, Chief United States District
Judge for the District of Minnesota, 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.
WESTERN WATERSHEDS PROJECT V. GRIMM 3
Second, the panel noted that causation was established
under the relaxed standard for procedural injuries.
Third, the panel held that the district court erred in
finding that plaintiffs’ injuries were not redressable, and in
relying on Goat Ranchers of Or. v. Williams, 379 F. App’x
662 (9th Cir. 2010), which was unpublished and therefore
lacked precedential value, and which was distinguishable on
the facts. The panel held that the proper inquiry was whether
plaintiffs had shown that halting Wildlife Services’ wolf-
killing activities pending additional NEPA analysis could
protect their aesthetic and recreational interests in gray
wolves in Idaho. The panel held that plaintiffs had shown
this. The panel remanded for further proceedings.
COUNSEL
Talasi Brooks (argued) and Lauren M. Rule, Advocates for
the West, Boise, Idaho; Kristin F. Ruether, Western
Watersheds Project, Boise, Idaho; for Plaintiffs-Appellants.
Kevin W. McArdle (argued), Andrew C. Mergen, Joan
Pepin, Shaun M. Pettigrew, and John P. Tustin, Attorneys;
Eric Grant, Deputy Assistant Attorney General; Jeffrey H.
Wood, Acting Assistant Attorney General; Environment and
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Lisa Jabaily and Leah C.
Battaglioli, Trial Attorneys, Marketing, Regulatory, and
Food Safety Programs Division, Office of the General
Counsel, United States Department of Agriculture,
Washington, D.C.; for Defendants-Appellees.
4 WESTERN WATERSHEDS PROJECT V. GRIMM
OPINION
TUNHEIM, Chief District Judge
Conservationist Plaintiffs brought this action to enjoin
the federal government’s participation in the killing of gray
wolves in Idaho pending additional analysis under the
National Environmental Policy Act of 1969 (“NEPA”).
Plaintiffs allege that Defendants Grimm and Wildlife
Services (together, “Wildlife Services”), a component of the
U.S. Department of Agriculture’s Animal and Plant Health
Inspection Service (“APHIS”), violated NEPA by failing to
prepare an Environmental Impact Statement (“EIS”) on their
wolf management activities in Idaho. The district court
dismissed Plaintiffs’ action for lack of Article III standing,
holding that Plaintiffs had not shown that their injuries were
redressable because Idaho could engage in the same lethal
wolf management operations without the help of the federal
government. Plaintiffs appeal. For the reasons below, we
reverse and remand.
I. BACKGROUND
A. National Environmental Policy Act
NEPA “is intended to help public officials make
decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and
enhance the environment.” 40 C.F.R. § 1500.1(c).
Accordingly, NEPA requires federal agencies to assess and
publicly disclose the environmental impacts of proposed
federal actions. See 42 U.S.C. §§ 4321–4370m-12. Where
a “major federal action” will “significantly affect[] the
quality of the human environment,” 42 U.S.C. § 4332(C), or
“there are substantial questions about whether a project may
cause significant degradation of the human environment,”
WESTERN WATERSHEDS PROJECT V. GRIMM 5
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1239 (9th Cir. 2005) (emphasis in original), an agency
is required to prepare an EIS. Where the environmental
consequences of a proposed federal action are unclear, an
agency must prepare an environmental assessment (“EA”) to
determine whether an EIS is necessary. 40 C.F.R.
§ 1501.4(b). If an agency completes an EA and determines
that an EIS is unnecessary, it must issue a “finding of no
significant impact” (“FONSI”) explaining its decision. Id.§ 1501.4(e).
An agency must supplement a draft or final EIS if:
“(i) [t]he agency makes substantial changes in the proposed
action that are relevant to environmental concerns; or
(ii) [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).
When reviewing an agency’s decision not to prepare an
EIS, we consider whether the decision was arbitrary and
capricious. Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998).
B. Gray Wolf Management in Idaho
Historically, the Northern Rocky Mountain (“NRM”)
gray wolf inhabited mountainous portions of Idaho,
Montana, and Wyoming. Its population decreased
drastically with increased human activity and, in 1974, the
U.S. Fish and Wildlife Service (“FWS”) listed the NRM
gray wolf as endangered under the Endangered Species Act
of 1973 (“ESA”).
FWS was responsible for managing the NRM gray wolf
population while it was listed under the ESA. In 1994, FWS
reintroduced NRM gray wolves into central Idaho. Its goal
6 WESTERN WATERSHEDS PROJECT V. GRIMM
was to help the NRM gray wolf reach a population of thirty
breeding pairs across the listed NRM range. Anticipating
potential wolf-human conflicts brought on by the
reintroduction, FWS authorized the killing or removal of
wolves identified as having preyed on livestock or other
domestic animals. Where authorized by FWS, Wildlife
Services assisted livestock owners with those efforts.
The NRM gray wolf population grew steadily under
FWS management. By 2000, FWS estimated that the
population had reached the stated goal of thirty breeding
pairs. In 2002, the Idaho Department of Fish and Game
(“IDFG”) prepared a plan describing Idaho’s goals and
strategies for wolf management. IDFG prepared the plan
anticipating that NRM gray wolves would eventually be
delisted under the ESA, which would shift wolf management
responsibilities to state governments.
After a series of failed delisting attempts, the NRM gray
wolf was successfully delisted in 2011 following a directive
from Congress. See All. for the Wild Rockies v. Salazar,
672 F.3d 1170, 1171–72 (9th Cir. 2012). Since the 2011
delisting, IDFG has maintained responsibility for managing
gray wolves in Idaho. IDFG manages wolves in accordance
with the 2002 plan and an Elk Management Plan developed
in 2014. Together, these plans address wolf predation on
livestock, domestic animals, and ungulates.
IDFG relies primarily on sport hunting to meet its wolf
management objectives, with harvest numbers ranging from
200 to 356 wolves annually since 2011. Where sport hunting
is insufficient, IDFG requests assistance from Wildlife
Services. Once Wildlife Services receives a request, it
enjoys considerable discretion in determining whether a
problem complained of was caused by wolves and, if so, how
to address it. Wildlife Services may use lethal or non-lethal
WESTERN WATERSHEDS PROJECT V. GRIMM 7
methods to target and address depredating wolf packs or
individuals. IDFG pays Wildlife Services with funds
allocated from its Wolf Depredation Control Board, which
was established in 2014.
From 2011 to 2015, between forty-two and eighty
wolves were killed annually by Wildlife Services or
livestock producers to address livestock depredation.
During that time, Wildlife Services also killed between zero
and twenty-three wolves per year to protect ungulates in
Idaho’s Lolo elk zone, an area identified by IDFG as a
critical habitat for its elk population. Wildlife Services
killed wolves in the Lolo elk zone during aerial shooting
operations, sometimes removing entire packs in one strike.
Aerial shooting is considered a highly effective wolf
management technique but requires special expertise and
equipment to be conducted effectively. IDFG independently
killed fourteen wolves in 2013 to benefit prey species but did
not independently kill wolves in other years. It is not clear
whether IDFG has ever carried out an aerial shooting
operation.
IDFG has stated that, in the absence of assistance from
Wildlife Services, it would conduct its own wolf removal
operations for the purpose of protecting ungulates. IDFG
has not provided details regarding to what extent, if any, it
would conduct wolf management operations for the purpose
of protecting livestock or domestic animals, whether it
would attempt to kill the same number of wolves, or what
management methods it would employ should Wildlife
Services withdraw its assistance. Instead, IDFG has made
general statements about its “independent capabilities to
perform wildlife control activities” and cited agreements
with independent contractors that it “has used and may use
to perform lethal wolf control.”
8 WESTERN WATERSHEDS PROJECT V. GRIMM
C. Wildlife Services’ EA and FONSI
Following public comment, in 2011, Wildlife Services
issued an EA and FONSI discussing its future involvement
with gray wolf management in Idaho. Among other
alternatives, Wildlife Services considered limiting its
activities to nonlethal control efforts or declining to provide
any assistance whatsoever. In its commentary, Wildlife
Services remarked that the effectiveness of alternatives
wherein it did not offer lethal control would “depend largely
on whether the USFWS or IDFG, as appropriate, were able
to establish an equally prompt and effective wolf damage
management program in the absence of [Wildlife Services]”
and that, “in the mean-time, implementation of both lethal
and nonlethal methods by other entities would likely not be
as effective as when carried out with the assistance of
[Wildlife Services].”
Ultimately, Wildlife Services chose “Alternative 2,”
under which it would continue to assist FWS—or, once
NRM wolves were delisted, IDFG—with wolf management
for the purpose of livestock protection and would provide
additional assistance for the purpose of ungulate protection.
Because Wildlife Services determined that Alternative 2
would not have a significant environmental impact, it did not
prepare an EIS. However, it stated that it would continue to
monitor its wolf management efforts in Idaho based on
several factors, including effects on wolf population, risks to
non-target species, impacts on public health and safety,
humaneness, and sociological issues.
Shortly after Wildlife Services issued the EA and
FONSI, the NRM gray wolf was delisted, allowing IDFG to
assume management over gray wolves in Idaho. Despite the
changes that accompanied and followed that shift—
including the legalization of sport hunting, changes to
WESTERN WATERSHEDS PROJECT V. GRIMM 9
IDFG’s wolf management plans, and the release of new
research—Wildlife Services determined each year from
2011 to 2015 that supplementation of its 2011 NEPA
analysis was unnecessary.
D. Procedural History
Plaintiffs are five environmental advocacy groups that
work and have members in Idaho. They brought this action
against Wildlife Services in June 2016 in the United States
District Court for the District of Idaho. Plaintiffs brought
four Claims: (I) NEPA Violation—Failure to prepare an EIS;
(II) NEPA Violation—Failure to take a hard look at the
effects of actions and alternatives; (III) NEPA Violations—
Decisions not to supplement NEPA analysis as arbitrary and
capricious, 5 U.S.C. § 706(2)(A); and (IV) NEPA
Violation—Failure to supplement the 2011 EA as an action
unlawfully withheld or unreasonably delayed, id. § 701(1).
They seek to enjoin Wildlife Services from continuing its
wolf-killing activities until it undergoes additional NEPA
analysis.
Plaintiffs and Wildlife Services filed cross-motions for
summary judgment. The district court granted summary
judgment for Wildlife Services, holding that Plaintiffs lack
Article III standing. The district court found that, even if
Wildlife Services were ordered to halt its wolf-killing
activities pending an updated NEPA analysis, Plaintiffs had
not shown that IDFG would not fill in and kill the same
number of wolves. Because of this finding, the court held
that Plaintiffs’ injuries were not redressable.
II. DISCUSSION
We review questions of standing de novo. Wild Fish
Conservancy v. Jewell, 730 F.3d 791, 794 & n.2 (9th Cir.
10 WESTERN WATERSHEDS PROJECT V. GRIMM
2013). A plaintiff has the burden of establishing Article III
standing. Salmon Spawning & Recovery All. v. Gutierrez,
545 F.3d 1220, 1225 (9th Cir. 2008). A plaintiff seeking to
establish standing 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.” Id. (citing Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
The only requirement in dispute here is redressability.
However, because redressability is influenced by the scope
of Plaintiffs’ injury, we turn first to that requirement.
A. Injury
Where a plaintiff alleges a procedural injury—such as a
NEPA violation—the 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.” WildEarth Guardians v. U.S. Dep’t of
Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting W.
Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th
Cir. 2011)). Environmental plaintiffs may establish injury-
in-fact by demonstrating 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.” Id.(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 183 (2000)).
Plaintiffs submitted eight declarations from their
members describing how Wildlife Services’ wolf-killing
activities threaten their aesthetic and recreational interests in
tracking and observing wolves in the wild, often in specific
regions. For instance, one member described how his life-
long love of wolves has led him to track and observe them
WESTERN WATERSHEDS PROJECT V. GRIMM 11
in the Idaho wilderness. Having been fortunate enough to
spot wolves or hear them howl on several occasions, he is
able to identify certain individuals and packs. He plans to
continue to track wolves throughout Idaho. On one
occasion, he personally witnessed Wildlife Services
shooting an entire wolf pack during an aerial killing
operation. He and other members also describe their
interests in enjoying the wildlife and ecosystems of Idaho,
which may be threatened by the ripple effects of wolf
mortality or changes in behavior caused by wolf killings.
These interests fall under the scope of NEPA’s protections
and establish injury-in-fact.
B. Redressability 1
The district court held that Plaintiffs’ injuries were not
redressable, finding that Plaintiffs had not shown that halting
Wildlife Services’ wolf management activities in Idaho
pending further NEPA analysis would result in fewer wolf
killings or more wolves being present in Idaho for Plaintiffs’
enjoyment. In so holding, the district court relied on Goat
Ranchers of Or. v. Williams, 379 F. App’x 662 (9th Cir.
2010) (unpublished). There, we held that the plaintiffs
challenging Wildlife Services’ participation in Oregon’s
state-funded cougar management plan had not shown that
their injuries were redressable because Oregon would likely
continue to kill and trap the same number of cougars without
Wildlife Services’ assistance. Id. at 663–64.
1
Causation is not at issue here. However, because standing is a
constitutional requirement, we note that Plaintiffs’ injury—reduced
aesthetic and recreational enjoyment of wolves in Idaho—is “not too
tenuously connected” to Wildlife Services’ alleged NEPA violation, thus
establishing causation under the relaxed standard for procedural injuries.
Salmon Spawning, 545 F.3d at 1229.
12 WESTERN WATERSHEDS PROJECT V. GRIMM
The district court erred by relying on Goat Ranchers.
That case is unpublished and lacks precedential value. 9th
Cir. R. 36-3(a). Additionally, Goat Ranchers and the present
case are significantly different factually. For instance,
unlike IDFG, Oregon made clear that it would continue to
remove cougars in each area it selected as a target, with or
without the participation or assistance of Wildlife Services.
Finally, in relying on Goat Ranchers, the district court failed
to properly apply the relaxed standard for redressability in
procedural injury cases. We turn now to that standard.
To establish redressability, “[p]laintiffs 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(quoting Defs. of Wildlife v. EPA, 420 F.3d 946, 957 (9th
Cir. 2005), overruled on other grounds by Nat’l Ass’n of
Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007)).
Thus, the proper inquiry here is whether Plaintiffs have
shown that halting Wildlife Services’ wolf-killing activities
pending additional NEPA analysis could protect their
aesthetic and recreational interests in gray wolves in Idaho.
We hold that they have.
If Wildlife Services were to cease its activities—even
temporarily—it is possible that fewer wolves would be
killed, particularly in the short term. Wildlife Services itself
has stated that, without its assistance, “implementation of
both lethal and nonlethal [wolf management] methods by
other entities would likely not be as effective.” Likewise,
additional NEPA analysis could change Wildlife Services’
activities in the long term. Among other possibilities,
Wildlife Services could decide, in its discretion, to kill fewer
wolves or to use only non-lethal means of wolf management
moving forward. Any of these outcomes would protect
WESTERN WATERSHEDS PROJECT V. GRIMM 13
Plaintiffs’ interests. “That it is uncertain whether [additional
analysis] will ultimately benefit the groups . . . does not
undermine their standing.” Salmon Spawning, 545 F.3d at
1229.
Nevertheless, Wildlife Services argues that, without it,
IDFG could—and would—exercise its independent
authority to meet its wolf management objectives, thus
defeating redressability. On this point, our opinion in
WildEarth Guardians is instructive. In that case, the
plaintiff brought NEPA claims against APHIS, challenging
its participation in Nevada’s predator management program.
WildEarth Guardians, 795 F.3d at 1153. APHIS and
Nevada shared responsibility for the program, with both
entities contributing funding and personnel. Id. at 1152.
APHIS argued that the plaintiff’s injuries were not
redressable because, without federal involvement, “Nevada
would pick up where the federal government left off.” Id. at
1156–57. In support of its argument, APHIS pointed to
Nevada’s independent authority to manage predators, its
existing participation in predator control activities, and a
single statement by a Nevada official expressing the state’s
intent to develop an independent program absent APHIS’s
participation. Id.
We held that the plaintiff’s procedural injuries were
redressable. Id. at 1156. We noted that although the Nevada
Department of Wildlife had stated that it would implement a
predator management program without APHIS, it had not
described how it would carry out such a program or to what
extent Nevada would devote its resources to it. Id. at 1158.
It was therefore possible that, without APHIS, Nevada
would spend less on predator management or would
implement control methods that were less harmful to the
plaintiff’s interests than those used by APHIS, such as aerial
14 WESTERN WATERSHEDS PROJECT V. GRIMM
hunting. Id. at 1158–59. Ultimately, we concluded that
“[t]he notion that Nevada would replace everything APHIS
[did was] speculative at best.” Id. at 1159.
Here, as in WildEarth Guardians, it is far from clear that,
without Wildlife Services, IDFG would implement a
program “entirely redundant” in its effect on Plaintiffs’
interests. Id. at 1158. IDFG has stated in general terms that
it has “independent capabilities to perform wildlife control
activities” and agreements with independent contractors that
it “has used and may use to perform lethal wolf control.”
Even so, IDFG has not expressed an intent—or ability—to
replace Wildlife Services’ lethal wolf management
operations completely. The closest IDFG has come to
indicating as much can be found in a single letter to Wildlife
Services in which the writer states that, if Wildlife Services
were unwilling to participate in wolf management for the
protection of ungulates, IDFG would conduct its own wolf
removal efforts for that purpose. But that letter does not state
that IDFG would independently carry out wolf killings to
protect livestock or domestic animals—a significant
component of Wildlife Services’ existing wolf management
activities in Idaho. Nor does it explain IDFG’s plans or
demonstrate its capacity to compensate for the loss of federal
services. Indeed, the fact that Wildlife Services has carried
out nearly all lethal wolf management in Idaho since 2011,
partially through highly technical operations such as aerial
hunting, suggests that IDFG may lack the expertise and
resources to carry out those operations itself. We therefore
conclude that whether IDFG would implement an identical
program without IDFG, thus resulting in the same number of
lethal wolf removals, is a matter of speculation. As we stated
in WildEarth Guardians, “[s]uch speculation does not defeat
standing.” Id. at 1159.
WESTERN WATERSHEDS PROJECT V. GRIMM 15
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s order dismissing this case for lack of standing and
REMAND for further proceedings.