Louisiana Sportsmen Alliance v. Tom Vilsack, et al

Filing

UNPUBLISHED OPINION FILED. [13-31260 Vacated and Remanded] Judge: ECP , Judge: JWE , Judge: JEG Mandate pull date is 12/19/2014 [13-31260]

Case: 13-31260

Document: 00512817374

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Date Filed: 10/28/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-31260

FILED
October 28, 2014
Lyle W. Cayce
Clerk

LOUISIANA SPORTSMEN ALLIANCE, L.L.C.,
Plaintiff–Appellant

v.

TOM VILSACK; ELIZABETH AGPAOA; UNITED STATES DEPARTMENT
OF AGRICULTURE,
Defendants–Appellees

Appeal from the United States District Court
for the Western District of Louisiana
U.S.D.C. No. 1:12-CV-2929
Before PRADO, ELROD, and GRAVES, Circuit Judges
PER CURIAM:*
This is an administrative-law case in which Plaintiff–Appellant
Louisiana Sportsmen Alliance, L.L.C. (the Alliance)—an organization
purporting to represent the interests of hunters who prefer to use dogs when
hunting deer—challenges the U.S. Forest Service’s decision to ban the use of
dogs to hunt deer in the Kisatchie National Forest.

The Alliance sued

Defendants–Appellees Secretary of Agriculture Tom Vilsack and Regional

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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Forester Elizabeth Agpaoa, in their official capacities, and the U.S.
Department of Agriculture (collectively the Forest Service) in federal court.
The Alliance asserts that the Forest Service’s decision to ban the use of dogs to
hunt deer in the Kisatchie National Forest was arbitrary and capricious under
the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 706. In a carefully
reasoned decision, the district court granted the Forest Service’s motion for
summary judgment. La. Sportsmen Alliance, LLC v. Vilsack, 984 F. Supp. 2d
600, 615–16 (W.D. La. 2013). The Alliance appeals this decision. The Forest
Service defends its decision and also argues—for the first time on appeal—that
this Court lacks jurisdiction because the Alliance has not established
organizational standing. We agree with the Forest Service’s jurisdictional
argument, and we vacate the district court’s opinion and remand to the district
court with instructions to dismiss without prejudice.
I.

BACKGROUND

The background of this appeal is thoroughly discussed in the district
court’s opinion. La. Sportsmen Alliance, 984 F. Supp. 2d at 603–04. Because
this Court need not reach any issues beyond standing, we have set forth only
the general contours of the dispute and the facts pertinent to the standing
question. See N.A.A.C.P. v. City of Kyle, Tex., 626 F.3d 233, 236 (5th Cir. 2010).
The Kisatchie National Forest is Louisiana’s only National Forest, and
it is managed by the Forest Service under the Kisatchie National Forest
Revised Land and Resource Management Plan.

Historically, the Forest

Service has allowed the hunting of deer using dogs (dog-deer hunting) on
369,000 acres of the Kisatchie National Forest during the dog-deer hunting
season.
In recent years, dog-deer hunting has become controversial. Those who
prefer to hunt deer without the use of dogs (still-deer hunters) complain that
dog-deer hunting is disruptive and unsportsmanlike. Adjacent landowners
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complain that dog-deer hunting leads to shooting near houses and from roads,
fights between dog-deer hunters and landowners, roads being blocked by dogdeer hunters, dogs running across private property, and trespass. Dog-deer
hunters defend the practice based on its history as a traditional method of
hunting in Louisiana dating back to the colonial period.
As the manager of the Kisatchie National Forest, the Forest Service is
tasked with mediating this conflict between dog-deer hunters, still-deer
hunters, and landowners. Over the past several years, the Forest Service has
reduced the number of days in the dog-deer hunting season from fifteen to
seven days.
In 2009, the Forest Service proposed a complete ban on dog-deer hunting
in the Kisatchie National Forest. After several years of consideration and
thousands of comments and letters, the Forest Service adopted the proposed
ban in 2012 and issued a Finding of No Significant Impact (FONSI).
The Alliance challenged this decision in federal court, and the district
court granted the Forest Service’s motion for summary judgment on the merits
and entered a judgment of dismissal. The Alliance timely appealed.
II.

DISCUSSION

The Forest Service raises a threshold issue whether this Court has
jurisdiction to consider the Alliance’s appeal. The district court was ill-served
by the Forest Service in this regard, because the Forest Service never argued
that the Alliance lacked organizational standing until this appeal. Article III
standing is a jurisdictional requirement that cannot be waived. City of Kyle,
626 F.3d at 237. “Federal courts, both trial and appellate, have a continuing
obligation to examine the basis for their jurisdiction,” and the issue of Article

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III standing “may be raised by the parties, or by the court sua sponte, at any
time.” MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). 1
To establish organizational standing, the Alliance must show (1) the
plaintiff organization’s asserted legally protected interest is germane to the
purposes of the plaintiff organization; (2) any of the plaintiff organization’s
members has standing to sue on his or her own behalf’; and (3) the participation
of individual members in the lawsuit is not required. Hunt v. Wash. State
Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). An individual member must
therefore satisfy the familiar requirements of Lujan:
First, the plaintiff must have suffered an “injury in fact”—an
invasion of a legally protected interest which is (a) concrete and
particularized; and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Second, there must be a causal connection between
the injury and the conduct complained of—the injury has to be
“fairly . . . trace[able] to the challenged action of the defendant, and
not . . . th[e] result [of] the independent action of some third party
not before the court.” Third, it must be “likely,” as opposed to
merely “speculative,” that the injury will be “redressed by a
favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), quoted by City of
Kyle, 626 F.3d at 237.
On this record, the Alliance has failed to establish that it has standing
to support its claim. The Alliance never alleged any specific facts showing a
concrete injury to any one of its members. Nor did the Alliance allege any
specific details regarding the nature and purpose of its organization. Further,
the Alliance never submitted any declarations or affidavits from any of its
individual members averring that they suffered a specific harm caused by the
We do not address the Forest Service’s prudential-standing argument—that the
Alliance’s asserted interests are outside the statute’s zone of interests—because the Forest
Service waived that argument by not presenting it to the district court. Unlike constitutional
standing, prudential standing may be waived. Bd. of Miss. Levee Comm’rs v. U.S. E.P.A.,
674 F.3d 409, 417 (5th Cir. 2012).
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Forest Service’s amendment. In light of this record, the Alliance has failed to
demonstrate that it has standing to assert its claim, and we therefore lack
jurisdiction to consider the Alliance’s appeal.
III.

CONCLUSION

For the foregoing reasons, we VACATE the district court’s judgment and
REMAND with instructions to dismiss without prejudice.

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