Salmon Spawning & Re v. Gutierrez ( 2008 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SALMON SPAWNING & RECOVERY               
    ALLIANCE; NATIVE FISH SOCIETY;
    CLARK-SKAMANIA FLYFISHERS,
    Plaintiffs-Appellants,
    v.
    CARLOS M. GUTIERREZ, in his                    No. 06-35979
    official capacity; UNITED STATES
    DEPARTMENT OF COMMERCE; D.                      D.C. No.
    CV-05-01877-RSM
    ROBERT LOHN, in his official
    capacity; NATIONAL OCEANIC AND                  OPINION
    ATMOSPHERIC ADMINISTRATION
    NATIONAL MARINE FISHERIES
    SERVICE; CONDOLEEZZA RICE, in her
    official capacity; UNITED STATES
    DEPARTMENT OF STATE,
    Defendants-Appellees.
    
    Appeal from the United States District Court
    for the Western District of Washington
    Ricardo S. Martinez, District Judge, Presiding
    Argued and Submitted
    April 11, 2008—Seattle, Washington
    Filed October 8, 2008
    Before: A. Wallace Tashima, M. Margaret McKeown, and
    William A. Fletcher, Circuit Judges.
    Opinion by Judge McKeown
    14321
    14324    SALMON SPAWNING & RECOVERY v. GUTIERREZ
    COUNSEL
    Eric Redman, Svend A. Brandt-Erichsen, Kelly B. Fennerty,
    Heller Ehrman LLP, Seattle, Washington, for the plaintiffs-
    appellants.
    SALMON SPAWNING & RECOVERY v. GUTIERREZ         14325
    Matthew J. McKeown, Acting Assistant Attorney General,
    Coby Howell, Ellen Durkee, Mark Haag, Environmental &
    Natural Resources Division, United States Department of Jus-
    tice, Washington, D.C., for the defendants-appellees.
    OPINION
    McKEOWN, Circuit Judge:
    Wild salmon and steelhead, which are listed as threatened
    or endangered under the Endangered Species Act, have been
    the subject of much litigation in the federal courts. As they
    swim back and forth from the Pacific Northwest to Canada,
    the fish have no cognizance of an international boundary, or
    the Pacific Salmon Treaty of 1999 (“Treaty”), an effort by
    Canada and the United States to manage salmon populations
    originating in Alaska and the Pacific Northwest.
    This appeal concerns whether three conservation groups
    have standing to challenge the decision of federal agencies
    and officials to enter into, and remain a party to, that Treaty.
    The groups alleged that take levels permitted under the Treaty
    have allowed Canadian fisheries to overharvest endangered
    and threatened salmon and steelhead. The district court dis-
    missed all three of their claims for lack of standing. We
    reverse the district court in part because the groups have pro-
    cedural standing to bring their third claim for relief. We
    affirm the dismissal of the first and second claims.
    BACKGROUND
    At the heart of this case are chinook and coho salmon and
    steelhead trout populations from Puget Sound, lower Colum-
    bia River, and Snake River (collectively, “salmon”). Twenty-
    six populations of these salmon are listed as threatened or
    endangered under the Endangered Species Act, 16 U.S.C.
    14326     SALMON SPAWNING & RECOVERY v. GUTIERREZ
    § 1531 et seq. (“ESA”). During their lifetime, these fish swim
    northward toward waters off the coast of British Columbia
    and Alaska, and then journey back through Alaskan and
    Canadian waters to return to their rivers of origin, where they
    spawn and die. Because of these unusual transboundary
    migration patterns, ESA-listed salmon that originate in United
    States waters are often caught by commercial and recreational
    fishers in Canada before they can make it back to their rivers
    of origin.
    In 1985, Canada and the United States entered into the
    Pacific Salmon Treaty to manage salmon populations origi-
    nating in Alaska, Canada, and the Pacific Northwest. That
    version of the Treaty set harvest ceilings for fisheries in both
    countries. Those ceilings remained constant from year to year.
    The ceilings initially proved successful at increasing salmon
    survival, but a drought in the early 1990s and poor survival
    conditions reversed that effect. In 1992, the Treaty expired.
    Unable to work out another agreement, the United States and
    Canada went back to managing their respective fisheries inde-
    pendently.
    In 1999, the two countries entered into another Treaty,
    which is at the heart of this litigation. In contrast to the 1985
    version, a portion of the 1999 Treaty established annual
    abundance-based chinook management regimes for fisheries
    off the coast of Southeast Alaska, Canada, Washington, and
    Oregon. Because Canadian, or “northern,” fisheries harvest
    listed salmon in substantially greater numbers than the United
    States, or “southern,” fisheries, the Treaty provisions focus
    mostly on the take levels of Canadian fisheries. Rather than
    setting absolute harvest ceilings that remain unchanged from
    year to year, the 1999 Treaty sets annual chinook harvest lim-
    its based on pre- and in-season estimates of abundance.
    The Treaty is implemented through the Pacific Salmon
    Commission (“Commission”). The Commission collects data
    on harvest from the two countries, and then recommends fish-
    SALMON SPAWNING & RECOVERY v. GUTIERREZ          14327
    ery management regimes. The Secretary of State of the United
    States, in consultation with the Secretary of Commerce and
    the Secretary of the Interior, approves or disapproves regimes
    that are recommended by the Commission. 16 U.S.C.
    § 3633(a)(2). Only those fishery regimes that are approved by
    the Secretary of State under subsection (a)(2) are forwarded
    to the states and tribes for implementation. 
    Id. § 3633(b).
    The
    Treaty provisions will expire at the end of 2008, unless the
    United States and Canada agree to an extension or modifica-
    tion.
    The United States’ implementation of the Treaty provisions
    was conditioned on its compliance with the requirements of
    the ESA. Under § 7(a)(2), 16 U.S.C. § 1536(a)(2), federal
    agencies must consult with either the National Marine Fish-
    eries Service (“NMFS”) or the Fish and Wildlife Service
    (“FWS”) to “insure that any action authorized, funded, or car-
    ried out by such agency . . . is not likely to jeopardize the con-
    tinued existence of any endangered species or threatened
    species.” Formal consultation begins with a written request by
    the agency planning to take action (“action agency”), and con-
    cludes with the issuance of a biological opinion (“BiOp”) by
    either NMFS or FWS as the “consulting agency.” 50 C.F.R.
    § 402.14(c), (l)(1). NMFS or FWS opines in the BiOp
    whether the proposed action, taken together with its cumula-
    tive effects, is likely to jeopardize the continued existence of
    listed species. 
    Id. § 402.14(g)(4).
    If an action is likely to jeopardize a species, the action
    agency must determine whether any “reasonable and prudent
    alternatives” (“RPA”) exist that will avoid jeopardizing
    threatened species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R.
    § 402.14(h)(3). If the BiOp results in a “no jeopardy” finding,
    or an RPA is available, NMFS or FWS will issue an “inciden-
    tal take statement” with the BiOp that exempts the action
    agency, and those authorized by it, from the taking prohibi-
    tion of ESA § 9, 16 U.S.C. § 1536(b)(4).
    14328       SALMON SPAWNING & RECOVERY v. GUTIERREZ
    The agency action triggering the ESA § 7 consultation pro-
    cess in this case was the State Department’s decision to enter
    into the 1999 Treaty on behalf of the United States. In effect,
    NMFS, as the consulting agency, studied whether Canadian
    take under the levels permitted by the Treaty would jeopar-
    dize listed salmon. NMFS issued a BiOp in which it con-
    cluded that Canadian take under the Treaty was not likely to
    jeopardize the continued existence of threatened or endan-
    gered salmon stocks. Because NMFS made a “no jeopardy”
    determination, it had no obligation to identify any alterna-
    tives. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14. NMFS
    included an incidental take statement to exempt the agencies
    from liability under ESA § 9.
    In November 2005, three conservation groups—Salmon
    Spawning & Recovery Alliance, Native Fish Society, and
    Clark-Skamania       Flyfishers1     (collectively    “Salmon
    Spawning”)—filed this action. Salmon Spawning alleged that
    the Department of Commerce, NMFS, the State Department,
    and the heads of those agencies in their official capacities,
    violated their obligations under ESA §§ 7, 9, and 10, and
    §§ 702 and 706 of the Administrative Procedure Act
    (“APA”), 5 U.S.C. §§ 702 and 706. The conservation groups
    challenged the BiOp as flawed, alleged that the federal agen-
    cies and officials violated their substantive duties under the
    ESA by continuing to implement the Treaty provisions, and
    claimed that formal consultation needed to be reinitiated in
    light of new information about listed salmon. The groups
    noted that in 2005, NMFS issued a BiOp in which it acknowl-
    edged that the Canadian harvest of Nooksack River chinook
    1
    Salmon Spawning & Recovery Alliance is a Washington-based group
    “dedicated to aiding the recovery of threatened and endangered salmon
    populations in the Northwest . . . .” Compl. ¶ 3. Native Fish Society is an
    Oregon non-profit corporation “dedicated to the protection and recovery
    of native fishes and their habitats in the Northwestern United States[.]” 
    Id. ¶ 4.
    Clark-Skamania Flyfishers is a Washington non-profit corporation
    “dedicated to the preservation of wild fish stocks, including ESA-listed
    salmon and steelhead, and the natural resources that sustain them.” 
    Id. ¶ 5.
              SALMON SPAWNING & RECOVERY v. GUTIERREZ          14329
    is above the rate necessary to rebuild the population. NMFS
    also noted in the 2005 BiOp that harvest rates by United
    States and Canadian fisheries of Pacific Northwest chinook
    from populations other than those at issue were too high to
    allow these populations to recover.
    The agencies and officials moved to dismiss the complaint
    for lack of standing under Federal Rule of Civil Procedure
    12(b)(1), or, in the alternative, for failure to state a claim
    under Rule 12(b)(6). The district court ultimately dismissed
    the complaint for lack of standing under Article III, conclud-
    ing that Salmon Spawning failed to show causation and
    redressibility. According to the court, the cause of the exces-
    sive harvesting was Canadian fishermen, and redress was
    speculative because the court could not direct the State
    Department to renegotiate the Treaty with Canada. Standing
    is a question of law that we review de novo. Citizens for Bet-
    ter Forestry v. U.S. Dep’t of Agric., 
    341 F.3d 961
    , 969 (9th
    Cir. 2003).
    ANALYSIS
    The broad contours of Article III standing are well known.
    We must first decide whether a plaintiff has suffered suffi-
    cient injury to satisfy the “case or controversy” requirement
    of Article III. Bennett v. Spear, 
    520 U.S. 154
    , 162 (1997);
    Cetacean Cmty. v. Bush, 
    386 F.3d 1169
    , 1174 (9th Cir. 2004).
    The plaintiff has the burden of establishing the three elements
    of Article III standing: (1) he or she has suffered an injury in
    fact that is concrete and particularized, and actual or immi-
    nent; (2) the injury is fairly traceable to the challenged con-
    duct; and (3) the injury is likely to be redressed by a favorable
    court decision. Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    ,
    560-61 (1992).
    Statutory standing is the second part of the inquiry. Ceta-
    cean 
    Cmty., 386 F.3d at 1175
    . If a plaintiff has shown suffi-
    cient injury to satisfy Article III, but has not been granted
    14330        SALMON SPAWNING & RECOVERY v. GUTIERREZ
    statutory standing, the suit must be dismissed under Federal
    Rule of Civil Procedure 12(b)(6), because the plaintiff cannot
    state a claim upon which relief can be granted. Canyon
    County v. Syngenta Seeds, Inc., 
    519 F.3d 969
    , 975 n.7 (9th
    Cir. 2008) (citing Cetacean 
    Cmty., 386 F.3d at 1175
    ).
    I.       ALLEGED LEGAL INADEQUACY OF THE BIOP
    In the first claim for relief, Salmon Spawning alleged that
    the 1999 BiOp authorizing the United States’ entry into the
    Treaty was arbitrary and capricious in violation of § 5 of the
    APA, and also a violation of ESA §§ 7 and 9. Specifically, the
    groups claimed that the BiOp improperly compared only the
    Treaty’s effect on harvest rates to harvest rates in the absence
    of the Treaty, instead of aggregating the effects of take under
    the Treaty, other harvest impacts, and non-harvest impacts;
    failed to evaluate the effects of take under the Treaty on the
    recovery and survival of listed salmon; evaluated only a frac-
    tion of the Puget Sound chinook populations; did not develop
    or apply a biologically based target exploitation rate in its
    jeopardy evaluation of Upper Willamette chinook; studied
    harvest impacts on the strongest components of the Lower
    Columbia chinook population, but not the weaker ones; and
    failed to analyze or propose reasonable and prudent measures
    or alternatives that would force the fisheries to target more
    selectively hatchery-origin salmon.2 In short, the conserva-
    tionists challenge the biological foundation for the Treaty.
    [1] To satisfy the injury-in-fact requirement of the Article
    III inquiry, “a plaintiff asserting a procedural injury must
    show that the procedures in question are designed to protect
    2
    Many salmon that are born in hatcheries have their adipose fin clipped
    prior to their release into the ocean. NMFS recently adopted regulations
    to prohibit the take of non-hatchery salmon, i.e., those with an intact adi-
    pose fin. 50 C.F.R. § 223.203. The groups point out this distinction
    between hatchery-origin and non-hatchery origin salmon to suggest the
    ease with which NMFS could implement measures to limit the take of
    non-hatchery salmon.
    SALMON SPAWNING & RECOVERY v. GUTIERREZ           14331
    some threatened concrete interest of his that is the ultimate
    basis of his standing.” Citizens for Better Forestry v. U.S.
    Dep’t of Agric., 
    341 F.3d 961
    , 969 (9th Cir. 2003) (quoting
    Public Citizen v. Dep’t of Transp., 
    316 F.3d 1002
    , 1015 (9th
    Cir. 2003), rev’d on other grounds, 
    541 U.S. 752
    (2004)
    (quoting Cantrell v. City of Long Beach, 
    241 F.3d 674
    , 679
    (9th Cir. 2001))). The conservation groups alleged in their
    complaint that they have various “scientific, educational, aes-
    thetic, recreational, spiritual, conservation, economic, and
    business interests” in the salmon. The § 7 consultation proce-
    dures in question—for example, the requirements that the
    BiOp evaluate both the recovery and survival of listed spe-
    cies, and that RPA or reasonable and prudent measures are
    proposed—protect these concrete interests. See 50 C.F.R.
    § 402.02 (defining, for purposes of ESA § 7(a)(2), to “jeopar-
    dize the continued existence” of a listed species); 16 U.S.C.
    § 1536(b)(3)(A) (requiring the proposal of RPA if jeopardy is
    found). These procedures are designed to advance the ESA’s
    overall goal of species preservation, and thus the groups’ spe-
    cific goals as to salmon preservation, by ensuring agency
    compliance with the ESA’s substantive provisions. See Ben-
    
    nett, 520 U.S. at 176
    .
    [2] A showing of procedural injury lessens a plaintiff’s bur-
    den on the last two prongs of the Article III standing inquiry,
    causation and redressibility. See 
    Lujan, 504 U.S. at 572
    n.7
    (stating that the “person who has been accorded a procedural
    right to protect his concrete interests can assert that right with-
    out meeting all the normal standards for redressibility and
    immediacy.”). Plaintiffs alleging procedural injury “must
    show only that they have a procedural right that, if exercised,
    could protect their concrete interests.” Defenders of Wildlife
    v. U.S. EPA, 
    420 F.3d 946
    , 957 (9th Cir. 2005) (emphasis in
    original), overruled on other grounds by Nat’l Ass’n of Home
    Builders v. Defenders of Wildlife, 
    127 S. Ct. 2518
    (2007). It is
    at this step of the standing analysis that the conservation
    groups stumble.
    14332      SALMON SPAWNING & RECOVERY v. GUTIERREZ
    The BiOp considered two proposed agency actions, only
    one of which is at issue in this appeal: the “formal commit-
    ment of the U.S. to implement its fishery obligations consis-
    tent with, and for the duration of, the new PST agreement—
    essentially a final U.S. approval of the agreement.”3 The BiOp
    recognized that, once the United States entered into the
    Treaty, “fishing levels in Canada will be set by the provisions
    of the agreement for its duration, and cannot be re-visited
    except as may otherwise be agreed by both countries.”
    (emphasis added).
    [3] The relationship between the BiOp and the Treaty sets
    up a dichotomy of interests that sinks the effort to establish
    Article III standing for the first two claims; if the groups were
    successful in establishing that NMFS failed to comply with
    the procedural requirements of ESA § 7 in deciding whether
    the United States’ entrance into the Treaty would jeopardize
    listed species, the procedurally flawed consultation and defec-
    tive BiOp could theoretically be set aside. See 5 U.S.C. § 706.
    But, a court could not set aside the next, and more significant,
    link in the chain—the United States’ entrance into the Treaty.
    While the United States and Canada can decide to withdraw
    from the Treaty, that is a decision committed to the Executive
    Branch, and we may not order the State Department to with-
    draw from it. See Earth Island Inst. v. Christopher, 
    6 F.3d 648
    , 652-53 (9th Cir. 1993) (deciding not to enforce a statute
    that required the Executive Branch to negotiate with foreign
    nations, as that branch alone has the exclusive power to con-
    duct foreign relations). So, while the groups correctly allege
    that they have a right to a procedurally sound consultation,
    they cannot demonstrate that “that right, if exercised, could
    protect their concrete interests.” Defenders of 
    Wildlife, 420 F.3d at 957
    .
    3
    The other agency action that was examined by the BiOp was the deci-
    sion by the North Pacific Fisheries Management Council to continue to
    defer its management authority to the State of Alaska.
    SALMON SPAWNING & RECOVERY v. GUTIERREZ               14333
    Plaintiffs alleging procedural injury can often establish
    redressibility with little difficulty, because they need to show
    only that the relief requested—that the agency follow the cor-
    rect procedures—may influence the agency’s ultimate deci-
    sion of whether to take or refrain from taking a certain action.
    See, e.g., Pit River Tribe v. U.S. Forest Serv., 
    469 F.3d 768
    ,
    779 (9th Cir. 2006). This is not a high bar to meet. But, the
    redressibility requirement is not toothless in procedural injury
    cases. Here, if a court were to give the groups the remedy that
    they seek—that NMFS and the State Department follow the
    proper procedures during a new § 7 consultation process—the
    ultimate agency decision of whether to enter into the Treaty
    with Canada, made nine years ago, could never be influenced.
    In effect, if we rule against the groups’ claim of procedural
    injury, they will continue to suffer injury; and, if we rule in
    their favor, they will still suffer injury because we cannot
    undo the Treaty. Cf. 
    id. That the
    BiOp authorized the United
    States to enter into a Treaty with a foreign sovereign “fore-
    close[s] our ability to provide effective relief.” 
    Id. [4] Perhaps
    recognizing their redressibility quandary, the
    conservation groups assert that the BiOp authorized agency
    actions broader than the State Department’s entrance into the
    Treaty.4 But, this semantic attempt to turn the BiOp into a
    freestanding basis for relief fails. The agency action that the
    BiOp authorized was the United States’ entrance into the
    Treaty. And, although we can set aside the BiOp, we cannot
    remedy the harm asserted. We affirm the district court’s dis-
    missal of the first claim for lack of standing.
    4
    For example, the groups suggest that the BiOp authorized the federal
    agencies to seek out and implement additional conservation measures,
    required them to monitor Treaty fisheries, and assigned them ongoing
    roles in implementing the Treaties.
    14334     SALMON SPAWNING & RECOVERY v. GUTIERREZ
    II.   THE AGENCIES’ CONTINUED IMPLEMENTATION            OF THE
    TREATY
    [5] In its second claim for relief, Salmon Spawning asserted
    that the agencies’ and officials’ continued participation in the
    implementation of the Treaty jeopardized listed salmon in
    violation of ESA § 7(a)(2), and that such participation was
    arbitrary and capricious in violation of the APA. Section
    7(a)(2) confers upon agencies that are considering discretion-
    ary actions an affirmative “do-no-harm obligation” when their
    actions could cause harm to an endangered species. Defenders
    of 
    Wildlife, 420 F.3d at 965
    . This duty is separate from an
    agency’s responsibility to comply with the procedures
    required by § 7. See 
    id. at 957
    (noting that a plaintiff may
    allege both procedural and substantive violations of the ESA).
    In other words, even if an action agency has satisfied the
    ESA’s consultation requirements, a court may conclude that
    the agency has not complied with its substantive duty to avoid
    jeopardy. 
    Id. So, in
    contrast to its first claim, which focused
    on alleged procedural flaws that occurred during the pre-
    Treaty consultation process, Salmon Spawning’s second
    claim challenges the agencies’ decision to continue allowing
    excessive Canadian harvesting now that the United States is
    a party to the Treaty.
    Even assuming that Salmon Spawning meets the injury-in-
    fact requirement—by asserting that its scientific, educational,
    aesthetic, recreational, economic, and business interests in the
    listed species will continue to be harmed by the failure to cor-
    rect overharvesting by the Canadians—a more difficult ques-
    tion is whether the groups have established causation and
    redressibility with respect to this claim. To show causation,
    the plaintiff must demonstrate a “causal connection between
    the injury and the conduct complained of—the injury has to
    be fairly traceable to the challenged action of the defendant,
    and not the result of the independent action of some third
    party not before the court.” 
    Lujan, 504 U.S. at 560-61
    (quot-
    SALMON SPAWNING & RECOVERY v. GUTIERREZ                   14335
    ing Simon v. Eastern Ky. Welfare Rights Org., 
    426 U.S. 26
    ,
    41-42 (1976) (internal quotation marks omitted)).
    [6] In the complaint, Salmon Spawning alleged that the
    groups’ injury is caused by the United States’ continued
    implementation of the Treaty, without exercising the authority
    to withdraw from the Treaty or requesting additional conser-
    vation measures to benefit listed salmon. On these allegations
    alone, the district court properly concluded that causation was
    lacking. The excessive harvesting permitted under the Treaty
    is not fairly traceable to the United States’ failure to withdraw
    from the Treaty. If the United States withdrew, the harvesting
    of listed species would arguably increase, because the Treaty
    set abundance-based limits on the Canadians’ take. The over-
    harvesting is also not fairly traceable to the agencies’ failure
    to ask the Canadians to take additional conservation mea-
    sures. Although the Canadians, if asked, might agree to
    require a reduction in their fisheries’ take, they could also
    refuse to accommodate the United States’ request. If we con-
    sider only these grounds as the bases for establishing causa-
    tion, the “causal connection” put forward by the conservation
    groups relies on an “attenuated chain of conjecture” insuffi-
    cient to support standing. See Ecological Rights Found. v.
    Pacific Lumber Co., 
    230 F.3d 1141
    , 1152 (9th Cir. 2000).
    But, on appeal, the groups have focused on a different
    ground to illustrate their injury: the ability of the federal agen-
    cies to limit the take of United States fisheries.5 They argue
    that because the agencies can limit the take of United States
    5
    The groups admitted at oral argument that they migrated from their
    focus in district court on reducing the take of Canadian fisheries, to a posi-
    tion that United States fisheries should reduce their take and thus offset the
    Canadians’ take. A plaintiff’s basis for standing must “affirmatively
    appear in the record.” Bender v. Williamsport Area Sch. Dist., 
    475 U.S. 534
    , 546 (1986). The allegation in the complaint that the defendants failed
    to “request additional conservation measures to benefit ESA-listed salmon
    populations” is marginally broad enough to include measures that could be
    taken by either Canada or the United States.
    14336     SALMON SPAWNING & RECOVERY v. GUTIERREZ
    fisheries and thus offset the effects of Canadian harvesting,
    the failure to take such action while permitting Canadian
    overharvesting under the Treaty violates the ESA.
    Though we are dubious about this proposition for purposes
    of causation and we are not inclined to read the complaint so
    broadly as to encompass an entirely new theory of causation,
    even if we were to credit this argument, redressibility poses
    an upstream battle. Salmon Spawning argues that a court
    order declaring that the agencies and officials violated the
    ESA and APA would require the defendants to exercise their
    authority to reduce the take of United States fisheries. We are
    not persuaded. According to Salmon Spawning, if we
    declared that the agencies violated their ESA obligation to
    avoid jeopardy, that would leave it “up to Defendants to
    determine whether . . . negotiations with Canada—or changes
    in U.S. fisheries—are needed to meet their obligations under
    the ESA.” This argument highlights the key difference
    between asserting substantive and procedural violations of the
    ESA: a plaintiff alleging procedural violations of the ESA
    must show only that the procedural right could protect their
    interest, whereas a plaintiff alleging a substantive violation
    must demonstrate that its injury would likely be redressed by
    a favorable court decision.
    [7] For much the same reason as the first claim fails, this
    claim hinges on agency action vis-a-vis the Treaty. The court
    cannot order renegotiation of the Treaty, and discretionary
    efforts by the agencies are too uncertain to establish redressi-
    bility. That a favorable judicial decision would leave matters
    to the discretion of the State Department and NMFS makes
    equally likely the possibility that the agencies would decide
    to take no “agency action” with respect to Canada’s fisheries
    —so as not to be constricted by § 7’s “no jeopardy”
    requirement—as the possibility that they would renegotiate a
    Treaty that would more aggressively limit the Canadians’
    take. Because Salmon Spawning has failed to show redressi-
    SALMON SPAWNING & RECOVERY v. GUTIERREZ          14337
    bility, we affirm the district court’s dismissal of the second
    claim for relief.
    III.   THE AGENCIES’ FAILURE TO REINITIATE CONSULTATION
    [8] Salmon Spawning also alleged that the State Depart-
    ment and NMFS were obligated by ESA § 7 and its imple-
    menting regulations to reinitiate consultation on the 1999
    BiOp. Consultation under § 7 must be reinitiated where
    (a) discretionary federal involvement or control has been
    retained or authorized; and (b) the amount or extent of taking
    specified is exceeded, new information reveals effects that
    may affect listed species or critical habitat in a manner not
    considered, the action is subsequently modified so as to cause
    an effect to the listed species or critical habitat not previously
    considered, or a new species is listed or critical habitat desig-
    nated. 50 C.F.R. § 402.16. The duty to reinitiate consultation
    lies with both the action agency and the consulting agency.
    See 
    id. [9] According
    to Salmon Spawning, since the BiOp was
    issued in 1999, new criteria developed by NMFS show that
    the Canadian harvest is taking more Puget Sound chinook
    than the BiOp anticipated; new data shows the amount and
    extent of the Canadian harvest of ESA-listed salmon; NMFS
    has changed the definition of salmon evolutionary significant
    units since 1999, such that almost three quarters of the salmon
    caught in some Canadian fisheries are ESA-listed; and it is
    now possible to differentiate between hatchery-origin salmon
    and listed salmon.
    [10] These claims alleged sufficient injury to satisfy the
    “case or controversy” requirement of Article III. With respect
    to injury in fact, Salmon Spawning claims that the State
    Department and NMFS violated the procedural requirements
    of § 7 by failing to reinitiate consultation in light of new
    information. The requirement that consultation be reinitiated
    protects a “concrete threatened interest” that is the basis of
    14338     SALMON SPAWNING & RECOVERY v. GUTIERREZ
    Salmon Spawning’s standing, the avoidance of harm to listed
    species. Citizens for Better 
    Forestry, 341 F.3d at 969-70
    .
    Because Salmon Spawning has properly alleged procedural
    injury, as noted earlier, causation and redressibility are
    relaxed. 
    Lujan, 504 U.S. at 572
    n.7. That it is uncertain
    whether reinitiation will ultimately benefit the groups (for
    example, by resulting in a “jeopardy” determination) does not
    undermine their standing. 
    Cantrell, 241 F.3d at 682
    . The
    asserted injury is not too tenuously connected to the agencies’
    failure to reinitiate consultation. And a court order requiring
    the agencies to reinitiate consultation would remedy the harm
    asserted. Unlike the other claims, this claim is a forward-
    looking allegation whose remedy rests in the hands of federal
    officials and does not hinge on upsetting the Treaty.
    [11] Salmon Spawning also meets the requirements for stat-
    utory standing under the ESA and the APA. The ESA’s
    citizen-suit provision authorizes the groups to bring suit
    against the State Department, as the action agency, for failure
    to comply with its ESA obligations. 16 U.S.C.
    § 1540(g)(1)(A). As for standing under the APA, the failure
    to reinitiate § 7 consultation is a final agency action subject
    to judicial review. See Envtl. Prot. Info. Ctr. v. Simpson Tim-
    ber Co., 
    255 F.3d 1073
    , 1079 (9th Cir. 2001). The conserva-
    tion groups’ interests in the protection of listed salmon are
    within the zone of interests to be protected by the ESA regula-
    tion requiring reinitiation. See 
    id. [12] Finally,
    Salmon Spawning has established associa-
    tional standing. Public 
    Citizen, 316 F.3d at 1019
    . Each of the
    conservation groups’ members has standing to sue individu-
    ally; the interests the groups seek to protect are germane to
    their purposes as conservation organizations; and neither the
    claim asserted nor the relief requested requires the participa-
    tion of the individual members in the lawsuit. 
    Id. Therefore, we
    reverse the district court’s dismissal of Salmon Spawn-
    SALMON SPAWNING & RECOVERY v. GUTIERREZ                   14339
    ing’s third claim for lack of standing and remand for further
    proceedings.6
    The judgment of the district court is affirmed in part,
    reversed in part, and remanded. We remand to the district
    court to determine whether attorneys’ fees under the Equal
    Access to Justice Act, 28 U.S.C. § 2412, should be granted.
    Each party shall pay its own costs on appeal.
    AFFIRMED in part, REVERSED in part, and
    REMANDED.
    6
    The agencies and officials moved to dismiss in the alternative for fail-
    ure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
    Because the motion to dismiss targeted standing, Salmon Spawning did
    not focus on this argument below, nor did the district court rule on it. This
    issue was not briefed on appeal. Therefore, we decline to pass on the mer-
    its of the motion to dismiss and remand to the district court for further pro-
    ceedings. We offer no opinion whether Salmon Spawning has stated a
    claim for relief.