Ycs Investments v. Usfws ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YCS INVESTMENTS; YOUNGSVILLE No. 20-15514
DEVELOPMENT, INC.; YOUNGSVILLE
HOLDINGS, INC.; EDENVALE D.C. No. 4:19-cv-01899-JSW
HOLDINGS, INC.,
Plaintiffs-Appellants, MEMORANDUM*
v.
UNITED STATES FISH AND WILDLIFE
SERVICE; DAVID BERNHARDT, in his
official capacity as Acting Secretary of the
United States Department of the Interior;
AURELIA SKIPWITH, in her official
capacity as Director of the United States
Fish and Wildlife Service,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted December 11, 2020
San Francisco, California
Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.
Plaintiffs-Appellants YCS Investments, Youngsville Development, Inc.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Youngsville Holdings, Inc., and Edenvale Holdings, Inc. (collectively, “YCS”)
bring claims against the United States Fish and Wildlife Service (“FWS”) under
the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the
Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., alleging that
FWS’s actions have injured YCS’s conservation interest in the threatened bay
checkerspot butterfly. YCS appeals the district court’s dismissal for lack of
standing. We review “a motion to dismiss for lack of standing de novo, construing
the factual allegations in the complaint in favor of the plaintiffs.” WildEarth
Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting
Mont. Shooting Sports Ass’n v. Holder, 727 F.3d 975, 979 (9th Cir. 2013)).
Because the parties are familiar with the facts, we do not recite them here. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. YCS must plead a concrete and particularized injury sufficient to
establish standing for its four causes of action alleging that FWS violated the ESA
and the APA when it approved the County of Santa Clara’s (“County”) Habitat
Conservation Plan (“Plan”) and issued an Incidental Take Permit (“Permit”) for the
bay checkerspot butterfly in 2013. Salmon Spawning & Recovery All. v. Gutierrez,
545 F.3d 1220, 1225 (9th Cir. 2008) (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992)). The Plan covers approximately 460,200 acres of land,
including approximately 2,150 acres of land owned by YCS, and controls
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construction and development in the area, as well as protection of endangered and
threatened species, including the butterfly.
YCS alleges that errors by FWS in approving the Plan and issuing the
Permit “may result” in the butterfly population on its property “being extirpated.”
YCS cannot show that FWS’s approval of the Plan and issuance of the Permit
caused it any injury, because neither action affected YCS’s ability to conserve its
land or caused a loss of butterfly habitat on that land. YCS does not allege that the
approval of the Plan or the issuance of the Permit has prevented YCS from
continuing its research and study of the butterflies on its land.
While YCS’s payment for third-party research may demonstrate a long-
standing interest in conservation generally, YCS’s alleged injury to its purported
conservation interest is too vague and speculative to establish harm. See Pac. Nw.
Generating Coop. v. Brown, 38 F.3d 1058, 1063 (9th Cir. 1994). YCS has not
pleaded a concrete and particularized injury sufficient to establish standing for its
four claims regarding approval of the Plan and issuance of the Permit. See Salmon
Spawning, 545 F.3d at 1225 (citing Lujan, 504 U.S. at 560–61).
2. YCS has not alleged a cognizable injury for its fifth cause of action
alleging that FWS failed to reinitiate consultation regarding the Plan and Permit
under ESA Section 7. See 16 U.S.C. § 1536; 50 C.F.R. § 402.16. YCS argues that
“new information”—the County’s refusal to permit YCS to build a residential
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development—requires FWS to reinitiate consultation because the County’s
refusal threatens the butterfly with extinction. However, YCS did not have
approval from the County to develop its land when FWS approved the Plan and
issued the Permit in 2013, and YCS still lacks approval today. The only new
information is YCS’s own decision to stop conserving its land. Because YCS has
itself created the new circumstance alleged, it lacks a cognizable injury for its fifth
cause of action. See 16 U.S.C. § 1536; 50 C.F.R. § 402.16; Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 416 (2013) (self-inflicted harm cannot satisfy standing
requirements).
AFFIRMED.
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