Salmon Spawning & Recovery Alliance v. Gutierrez

• Decision Date: 08 October 2008
• Docket Number: No. 06-35979.,06-35979.
• Citation: 545 F.3d 1220
• Parties: SALMON SPAWNING & RECOVERY ALLIANCE; Native Fish Society; Clark-Skamania Flyfishers, Plaintiffs-Appellants, v. Carlos M. GUTIERREZ, in his official capacity; United States Department of Commerce; D. Robert Lohn, in his official capacity; National Oceanic and Atmospheric Administration National Marine Fisheries Service; Condoleezza Rice, in her official capacity; United States Department of State, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

545 F.3d 1220

SALMON SPAWNING & RECOVERY ALLIANCE; Native Fish Society; Clark-Skamania Flyfishers, Plaintiffs-Appellants, v. Carlos M. GUTIERREZ, in his official capacity; United States Department of Commerce; D. Robert Lohn, in his official capacity; National Oceanic and Atmospheric Administration National Marine Fisheries Service; Condoleezza Rice, in her official capacity; United States Department of State, Defendants-Appellees.

No. 06-35979.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2008.

Filed October 8, 2008.

Eric Redman, Svend A. Brandt-Erichsen, Kelly B. Fennerty, Heller Ehrman LLP, Seattle, WA, for the plaintiffs-appellants.

Matthew J. McKeown, Acting Assistant Attorney General, Coby Howell, Ellen Durkee, Mark Haag, Environmental & Natural Resources Division, United States Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Ricardo S. Martinez, District Judge, Presiding. D.C. No. CV-05-01877-RSM.

Before: A. WALLACE TASHIMA, M. MARGARET McKEOWN, and W. FLETCHER, Circuit Judges.

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 dismissed all three of their claims for lack of standing. We reverse the district court in part because the groups have procedural 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 Columbia 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. § 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 originating 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 independently.

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 limits 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 fishery 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 modification.

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 Fisheries Service ("NMFS") or the Fish and Wildlife Service ("FWS") to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued 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 concludes 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 cumulative 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 "incidental take statement" with the BiOp that exempts the action agency, and those authorized by it, from the taking prohibition of ESA § 9, 16 U.S.C. § 1536(b)(4).

The agency action triggering the ESA § 7 consultation process 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 jeopardize listed salmon. NMFS issued a BiOp in which it concluded that Canadian take under the Treaty was not likely to jeopardize the continued existence of threatened or endangered salmon stocks. Because NMFS made a "no jeopardy" determination, it had no obligation to identify any alternatives. 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 agencies 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 acknowledged that the Canadian harvest of Nooksack River chinook 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, concluding that Salmon Spawning failed to show causation and redressibility. According to the court, the cause of the excessive 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 Better 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 sufficient injury to satisfy the "case or controversy" requirement of Article III. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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 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. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Statutory standing is the second part of the inquiry. Cetacean Cmty., ...