WildEarth Guardians v. U.S. Forest Serv.
| Docket Number | 21-35936 |
| Decision Date | 14 June 2023 |
| Parties | WILDEARTH GUARDIANS; Western Watersheds Project; Kettle Range Conservation Group, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Glenn Casamassa, Pacific Northwest Regional Forester; Rodney Smoldon, Forest Supervisor, Defendants-Appellees, Diamond M Ranch, a Washington General Partnership, Intervenor-Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Eastern District of Washington, Rosanna Malouf Peterson, District Judge, Presiding, D.C. No. 2:20-cv-00223-RMP
Jennifer Schwartz (argued), Law Office of Jennifer R. Schwartz, Portland, Oregon; Lauren M. Rule, Advocates for the West, Portland, Oregon; Talasi B. Brooks, Western Watersheds Project, Boise, Idaho; for Plaintiffs-Appellants.
Robert P. Stockman (argued), Andrew C. Mergen, Kevin McArdle, and Michelle Spatz, Attorneys; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice; Washington, D.C.; Emma Hamilton, Attorney; Environment and Natural Resources Division, United States Department of Justice; Denver, Colorado; Shaun M. Pettigrew, NOAA/Damage Assessment, Seattle, Washington; for Defendants-Appellees.
Chris A. Montgomery, Montgomery Law Firm, Colville, Washington, for Intervenor-Defendant-Appellee.
Dominic M. Carollo, Carollo Law Group LLC, Roseburg, Oregon, for Amicus Curiae Washington Cattleman's Association.
Before: John B. Owens and Eric D. Miller, Circuit Judges, and Dean D. Pregerson,* District Judge.
When gray wolves prey on livestock in Washington State, the Washington Department of Fish and Wildlife may—or may not—kill the wolves involved: Under state law, the decision whether to do so is committed to the Department's discretion. The United States Forest Service oversees livestock grazing in the Colville National Forest in Eastern Washington, but it does not regulate or participate in the killing of wolves by the Department. Environmental organizations concerned about the wolves sued the Forest Service challenging its grazing decisions. They allege that those decisions will lead to an increase in the number of wolf attacks on livestock, which in turn will cause the Department to kill more wolves. The district court dismissed the lawsuit for lack of standing. We affirm.
The gray wolf was once widespread throughout North America, including almost all of Washington. Habitat loss and killing by humans reduced the population, and by the 1930s wolves had been extirpated from Washington. Eventually, the gray wolf was listed as an endangered species throughout most of the lower 48 States. Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978).
In the early 2000s, gray wolves began to repopulate Washington. In 2009, the Northern Rocky Mountain wolf population, which includes the wolves in Eastern Washington, was removed from the federal list of endangered species. Endangered and Threatened Wildlife and Plants; Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,123 (Apr. 2, 2009); see Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1228 (D. Mont. 2010) (); Department of Defense and Full-Year Continuing Appropriations Act, 2011 § 1713, Pub. L. No. 112-10, 125 Stat. 38, 150 ().
Although gray wolves in Eastern Washington are no longer an endangered species under federal law, the State continues to designate them as endangered. Wash. Admin. Code § 220-610-010. Washington law generally prohibits killing endangered species, but it permits the Department of Fish and Wildlife to "authorize the removal or killing of wildlife that is destroying or injuring property, or when it is necessary for wildlife management or research." Wash. Rev. Code Ann. § 77.12.240(1); see id. § 77.15.120(1).
The Department has adopted a plan to promote the recovery of gray wolves. See Wash. Admin. Code § 220-610-110 ¶ 11.1. A stated goal of the plan is to "[m]anage wolf-livestock conflicts in a way that minimizes livestock losses, while at the same time not negatively impacting the recovery or long-term perpetuation of a sustainable wolf population." The plan lays out circumstances in which the Department may kill wolves to stop repeated depredations on livestock. Killing wolves—which the Department refers to as "lethal removal"—is acceptable under the plan "if it is documented that livestock have clearly been killed by wolves, non-lethal methods have been tried but failed to resolve the conflict, depredations are likely to continue, and there is no evidence of intentional feeding or unnatural attraction of wolves by the livestock owner." The Department evaluates the need for lethal removal "on a case-specific basis, with management decisions based on pack history and size, pattern of depredations, number of livestock killed, state listed status of wolves, extent of proactive management measures being used on the property, and other considerations." In 2019, the Department killed nine wolves in Washington.
This case involves the Colville National Forest, which covers portions of Ferry, Stevens, and Pend Oreille Counties in Eastern Washington. The Forest Service controls uses of forest land, including for livestock grazing, through a forest plan. 16 U.S.C. § 1604(a), (e). The Service implements the plan by issuing permits to livestock owners that authorize grazing in specified areas. 43 U.S.C. § 1752(a).
In 2019, the Service revised its plan for the Colville National Forest. In response, three environmental organizations—WildEarth Guardians, Western Watersheds Project, and Kettle Range Conservation Group (collectively, WildEarth)—brought this lawsuit against the Service. WildEarth asserted claims under the National Environmental Policy Act of 1969 (NEPA), Pub. L. No. 91-190, 83 Stat. 852 (1970), and the National Forest Management Act of 1976 (NFMA), Pub. L. No. 94-588, 90 Stat. 2949. According to the complaint, the Service violated those statutes by failing to consider "modifying grazing management in order to mitigate recurring wolf-livestock conflicts that result in the lethal removal of wolves from the Colville National Forest." In addition to challenging the 2019 forest plan as a whole, the complaint also alleged that a specific authorization issued under that plan—the 2020 grazing authorization issued to Diamond M Ranch—was unlawful because it lacked sufficient measures for reducing wolf-livestock conflicts.
On cross-motions for summary judgment, the district court granted summary judgment to the Service. It held that WildEarth lacked Article III standing to bring its claims. The district court reasoned that WildEarth had not shown that a favorable decision would redress its injury because "the lethal removal of gray wolves is the prerogative of the [Department], a third party not before the Court."
WildEarth appeals. For its part, the Service challenges the district court's decision to strike a document that describes the Department's protocol for responding to conflicts between wolves and livestock. Because the protocol is reflected elsewhere in the record, it is unnecessary for us to consider the document, and we proceed without it. See Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1451 (9th Cir. 1996).
Article III of the Constitution gives federal courts the power to decide only "Cases" and "Controversies." U.S. Const. art. III, § 2. Courts have "long understood that constitutional phrase to require that a case embody a genuine, live dispute between adverse parties." Carney v. Adams, — U.S. —, 141 S. Ct. 493, 498, 208 L.Ed.2d 305 (2020). The doctrine of standing helps ensure the necessary adversarial dispute. To establish Article III standing, "a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Association of Irritated Residents v. EPA, 10 F.4th 937, 943 (9th Cir. 2021) (quoting Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see California v. Texas, — U.S. —, 141 S. Ct. 2104, 2113, 210 L.Ed.2d 230 (2021).
The plaintiff has the burden of establishing standing "with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Thus, at the summary judgment stage, a plaintiff must offer evidence and specific facts demonstrating each element." Center for Biological Diversity v. Export-Import Bank of the U.S., 894 F.3d 1005, 1012 (9th Cir. 2018). We review Article III standing de novo. Save Bull Trout v. Williams, 51 F.4th 1101, 1105 (9th Cir. 2022).
The Forest Service does not dispute that WildEarth has a concrete interest in the welfare of gray wolves in the Colville National Forest. WildEarth says that its members "gain aesthetic enjoyment from observing . . . and studying wild wolves" in the forest, and that they "have engaged in these activities in the past, and intend to do so again in the near future." Harm to the wolves therefore inflicts an injury on WildEarth's members, satisfying the first component of the standing test. See Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130 (...
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