Friends of Animals v. U.S. Fish and Wildlife Service ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF ANIMALS, No. 19-35044
Plaintiff-Appellant, D.C. No. 6:17-cv-00860-AA
v.
MEMORANDUM*
UNITED STATES FISH AND WILDLIFE
SERVICE, an agency of the United States;
JIM KURTH, in his official capacity as the
acting Director of the United States Fish and
Wildlife Service,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted December 10, 2019
Seattle, Washington
Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.
Plaintiff Friends of Animals (“Friends”) appeals the district court’s grant of
summary judgment for lack of standing on Friends’ challenge of a series of permits
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
and Safe Harbor Agreements issued by the United States Fish and Wildlife Service
(“the Service”). We reverse in part, affirm in part, and remand for the district court
to consider the merits of Friends’ challenge.
1. Friends has suffered an injury that is “concrete and particularized” with
respect to the permit sites in the Oregon Coast Range Study Area. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). One of Friends’ two declarants,
Marguery Zucker, averred that she visited campsites a mile away and half a mile
away from the permit sites in the Oregon Coast Ranges Study Area. This was not
an “averment[] which state[d] only that [one of the organization’s] members uses
unspecified portions of an immense tract of territory,” Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 889 (1990), but a statement that she “use[s] the affected
area.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183–
84 (2000).
Because Friends needs only one of its members to have standing for the
purposes of its challenge, see Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994),
we do not address whether Michael Harris, Friends’ other declarant, has standing.
2. Friends’ members have not, however, described a particularized interest in
the Klamath Study Area. Zucker, the only declarant to mention the Klamath Study
Area, stated only that her “numerous travels across Douglas County for various
camping and hiking expeditions have taken [her] through the Union/Myrtle
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(Klamath) Study Area.” This statement is inadequate to establish standing to
challenge the particular permits and agreements here at issue, as it avers only that
Zucker has traveled “‘in the vicinity of’ vast tracts of land, small sections of which
would be [affected areas].” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d
1141, 1148 n. 7 (9th Cir. 2000) (quoting Lujan, 497 U.S. at 886–89).
3. With regard to its challenge to the Oregon Coast Range permits and
agreements, Friends has established that the “threatened injury is certainly
impending, or there is a substantial risk that the harm will occur.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation and internal quotation
marks omitted). “[S]ome probabilistic chance of environmental harm . . . is
sufficient for Article III standing[,] . . . [because] [t]hreatened environmental harm
is by nature probabilistic.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747
F.3d 581, 645 n.49 (9th Cir. 2014) (citations and internal quotation marks omitted).
Here, at least two of Friends’ potential injuries satisfy the imminence
requirement. Zucker declared that she enjoys viewing both barred and spotted
owls. With respect to the former, the permits allow the Service to enter the permit
sites to kill barred owls. With respect to the latter, the Service’s broader spotted
owl experiment expressly contemplates the return of some spotted owls to the
study areas; the permits and Safe Harbor Agreements are designed to allow the
incidental take of any spotted owls that do return to the covered sites. There is
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therefore a “substantial risk” that the permits and Safe Harbor Agreements will
harm Friends’ members’ aesthetic and recreational interests in viewing barred and
spotted owls.
4. For substantially the same reasons, Friends also satisfies Article III
standing requirements for the purposes of its procedural challenge under the
National Environmental Policy Act of 1969 of the Service’s decision not to issue
an updated Environmental Impact Study. See WildEarth Guardians v. U.S. Dep’t
of Agric., 795 F.3d 1148, 1154–55 (9th Cir. 2015).
AFFIRMED in part; REVERSED in part; REMANDED. Costs on
appeal are awarded to Appellant.
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