Goat Ranchers of Oregon v. David Williams

FILED
NOT FOR PUBLICATION MAY 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
GOAT RANCHERS OF OREGON, an No. 09-35541
unincorporated association doing business
in Oregon; CENTER FOR BIOLOGICAL D.C. No. 3:08-cv-00097-ST
DIVERSITY; BIG WILDLIFE, an Oregon
nonprofit organization; KLAMATH
SISKIYOU WILDLANDS CENTER, an MEMORANDUM *
Oregon nonprofit corporation; UMPÏUA
WATERSHEDS, an Oregon nonprofit
corporation; CASCADIA WILDLANDS
PROJECT, an Oregon nonprofit
corporation; MOUNTAIN LION
FOUNDATION, an Oregon nonprofit
corporation,
Plaintiffs - Appellants,
v.
DAVID E. WILLIAMS, in his capacity as
Oregon Wildlife Services State Director,
Wildlife Services/USDA Animal and Plant
Health; USDA ANIMAL AND PLANT
HEALTH INSPECTION SERVICE
(APHIS),
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Oregon
Janice M. Stewart, Magistrate Judge, Presiding
Argued and Submitted May 3, 2010
Portland, Oregon
Before: KLEINFELD, BEA and IKUTA, Circuit Judges.
Appellants have not established the causation and redressability of their
injuries as required for Article III standing. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). To satisfy the Constitution's requirements for
standing, appellants must show: '(1) actual or threatened injury (2) suffered as a
result of the allegedly illegal conduct of the defendant, which (3) fairly can be
traced to the challenged action and (4) is liµely to be redressed by a favorable
decision.' Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353
(9th Cir.1994) (citing Valley Forge Christian Coll. v. Ams. United for Separation
of Church and State, Inc., 454 U.S. 464, 472 (1982)). 'The party invoµing federal
jurisdiction bears the burden of establishing these elements.' Lujan, 504 U.S. at
560.
2
Appellants failed to show that their alleged concrete injury in fact1--a
decreased chance of seeing cougars in the wild and an increased chance of being
harmed by trapping equipment--is '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 561 (internal quotation marµs and alterations
of the quotations omitted), or that it is 'liµely, as opposed to merely speculative,
that [their] injury will be redressed by a favorable decision.' Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000).
Cougars are being culled under Oregon's own state-run, state-funded Cougar
Management Plan. Oregon does not need federal approval to manage the cougars
within its boarders, and has µilled cougars without federal assistance. The Oregon
Department of Fish and Wildlife is not a party before the court, and is free to
continue (as it has indicated it will) the trapping and µilling of cougars regardless
of any relief available to appellants in this case. Whether or not the federal
government assists Oregon, Oregon will continue to µill and trap cougars. With
each cougar µilled, the liµelihood of appellants seeing a cougar in the wild is
1
Because we hold that causation and redressibility are lacµing, we assume,
arguendo, that appellants alleged an injury with sufficient particularity to satisfy
Article III standing.
3
decreased. Nothing that could happen in this case would change that. See Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) ('[T]he 'case or
controversy' limitation of Art. III still requires that a federal court act only to
redress injury that fairly can be traced to the challenged action of the defendant,
and not injury that results from the independent action of some third party not
before the court.'). Appellants have made no showing that whatever small
probability they have of seeing a cougar in the wild will be reduced materially if
the state does all rather than some of the cullings.
Affirmed.
4
FILED
Goat Ranchers of Oregon v. Williams, No. 09-35541 MAY 19 2010
MOLLY C. DWYER, CLERK
BEA, Circuit Judge, dissenting. U.S . CO UR T OF AP PE A LS
I dissent because I thinµ a genuine issue of material fact exists as to whether
the probability that Plaintiffs will see a cougar will decrease. On this record, that
may depend on whether the Oregon Department of Fish and Wildlife ('ODFW')
can µill cougars as effectively and quicµly without the assistance of Wildlife
Services.
A plaintiff bears 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 imminent; (2) the injury is fairly traceable to the
challenged conduct; and (3) the injury is liµely to be redressed by a favorable court
decision.' Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220,
1225 (9th Cir. 2008). A plaintiff's burden with respect to establishing these
elements increases at each stage of litigation. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992). In response to a motion for summary judgment, a plaintiff
must ''set forth' by affidavit or other evidence 'specific facts,' which for purposes
of the summary judgment motion will be taµen to be true.' Id. (internal citation
omitted).
Here, the district court held Plaintiffs lacµed standing at the summary
1
judgment stage. Thus, the question we are asµed to decide is whether Plaintiffs
adduced evidence from which a rational trier of fact could have found facts
sufficient to satisfy the elements of Article III standing. See Blanµenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007) (summary judgment must be denied if a
rational trier of fact might resolve the issue in favor of the nonmoving party).
The relevant injury in this case is the reduced liµelihood that Plaintiffs will
see a cougar in Oregon. Based on this injury, the relevant inquiry for purposes of
redressabilty is whether a judgment in favor of Plaintiffs could increase the
liµelihood that they will eventually see a cougar in Oregon.
First, a judgment in favor of Plaintiffs could affect Wildlife Services's
participation, one way or another, in the µilling of cougars in Oregon. 'A plaintiff
. . . who asserts inadequacy of a government agency's environmental studies under
NEPA need not show that further analysis by the government would result in a
different conclusion. It suffices that . . . the [agency's] decision could be
influenced by the environmental considerations that NEPA requires an agency to
study.' Hall v. Norton, 266 F.3d 969, 977 (9th Cir. 2001) (internal citation
omitted) (emphasis added). Here, Plaintiffs were not required to show that further
analysis under NEPA would cause Wildlife Services to terminate its agreement
with ODFW. Rather, it is sufficient that further analysis under NEPA could cause
2
Wildlife Services to terminate its agreement with ODFW.
Second, although there is no evidence in the record that the total number of
cougars that will eventually be µilled in Oregon will decrease if Wildlife Services
terminates its agreement with ODFW, there is evidence in the record sufficient to
create a triable issue of fact as to whether the rate at which cougars will be µilled
will decrease if Wildlife Services stops µilling cougars in Oregon. In the Cougar
Management Plan, ODFW set a goal to µill a total of sixty-six cougars per year in
three target areas. Without the assistance of Wildlife Services, ODFW µilled only
twenty-six cougars during the 2006-2007 winter, with five people worµing part-
time. The following winter, ODFW µilled twenty-three cougars with five people
worµing part-time while Wildlife Services µilled sixteen cougars with two people
worµing part-time. The total cost of µilling the cougars was nearly the same each
year: ü113,165 and ü115,827, respectively. Yet, the number of cougars µilled
increased by 50û once Wildlife Services started µilling cougars. Based on this
evidence, a rational trier of fact could reach the same conclusion that the magistrate
judge reached: 'Clearly Wildlife Services is more efficient at µilling cougars than
ODFW.'
It may well be that Oregon will be able to µill cougars just as fast as Wildlife
Services did. But the facts in the record do not show such a determination can be
3
made as a matter of law. It may be that if Wildlife Services is enjoined, the rate at
which cougars will be µilled will decrease to the winter 2006-2007 level that
preceded Wildlife Services's participation in the cougar-µilling program. Or it
may be that ODFW can enlist volunteers to hunt cougars with dogs as permitted by
Oregon Revised Statute section 498.164(3) or increase its cougar-µill budget
enough to replace the results brought about by Wildlife Services. But we cannot
predict that with the certainty required for factual determinations in summary
judgment proceedings.
If a trier of fact were to conclude that cougars will be µilled at a slower rate
without the participation of Wildlife Services, Plaintiffs can satisfy the elements of
Article III standing. Plaintiffs' injury--the decreased liµelihood of seeing a
cougar--is fairly traceable to Wildlife Services's agreement to µill cougars and
Wildlife Services's ability to µill cougars more quicµly and more efficiently than
does ODFW. Further, Plaintiffs' injury can be redressed, at least in part, by an
order of the district court to enjoin Wildlife Services's µilling of cougars until it
complies with NEPA. Therefore, I would reverse the district court's order and
remand for adjudication on the merits.
4