Barnum Timber Co. v. USEPA, et al

Filing

FILED OPINION (STEPHEN R. REINHARDT, JAY S. BYBEE and JAMES S. GWIN) REVERSED AND REMANDED. Judge: JSB Authoring, Judge: JSG Dissenting. FILED AND ENTERED JUDGMENT. [7634574]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARNUM TIMBER CO., a California
limited partnership,
Plaintiff-Appellant,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and LISA
JACKSON,
Defendants-Appellees.




No. 08-17715
D.C. No.
3:08-CV-01988WHA
OPINION



Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
March 11, 2010—San Francisco, California
Filed February 3, 2011
Before: Stephen Reinhardt and Jay S. Bybee, Circuit Judges,
and James S. Gwin, District Judge.*
Opinion by Judge Bybee;
Dissent by Judge Gwin

*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.

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COUNSEL
Damien Schiff, Pacific Legal Foundation, Sacramento, California, for the appellant.
Andrew Mergen and Jason Walta, U.S. Department of Justice,
Environment & Natural Resources Division, Washington,
D.C., for the appellee.

OPINION
BYBEE, Circuit Judge:
Plaintiff-Appellant Barnum Timber Company (“Barnum”)
owns and operates nonindustrial timberlands and rangelands
in Northern California, including land in the Redwood Creek
watershed. It appeals the district court’s dismissal of its action
against the Defendant-Appellees, the U.S. Environmental Protection Agency (“EPA”). Barnum brought suit in district court
under the Administrative Procedure Act (“APA”) to challenge
EPA’s decision to retain the Redwood Creek as an impaired
water body under § 303(d) of the Clean Water Act (“CWA”).
The district court dismissed Barnum’s suit for lack of Article
III standing but granted leave to file an amended complaint.
Barnum moved to amend the complaint, but the district court
denied the motion for failure to remedy the standing deficiency and entered judgment dismissing the case. Barnum
appeals.
We conclude that Barnum’s amended complaint demonstrated that Barnum has standing as a landowner whose property values are adversely impacted to challenge EPA’s
retention of Redwood Creek as a § 303(d) impaired water
body. Accordingly, we reverse the judgment of the district
court and remand the case for further proceedings.

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I.

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BACKGROUND

Plaintiff-Appellant Barnum Timber Company (“Barnum”)
is a California limited partnership that owns property and conducts timber-harvesting operations in the Redwood Creek
watershed near Eureka, California. Section 303(d) of the
CWA, 33 U.S.C. § 1313(d), is part of what we termed “the
Act’s carrot-and-stick approach to attaining acceptable water
quality without direct federal regulation of nonpoint sources
of pollution.” Pronsolino v. Nastri, 291 F.3d 1123, 1127 (9th
Cir. 2002). The CWA requires that each state identify bodies
of water within its boundaries that are impaired by effluent
(§ 303(d)(1)(A)) or thermal (§ 303(d)(1)(B)) pollution and
then periodically submit a list of the impaired water bodies to
EPA for approval. CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).
Once EPA has approved a state’s list, the state and EPA must
develop maximum pollution levels for the impaired water
bodies called “total maximum daily loads” (TMDL). 33
U.S.C. § 1313(d)(1)(C). Under the CWA, the state must
create a plan to bring the impaired water bodies into compliance with the TMDLs. Id. As we have previously made clear,
“[t]he states are required to set water quality standards for all
waters within their boundaries regardless of the sources of the
pollution entering the waters. If a state does not set water
quality standards, or if the EPA determines that the state’s
standards do not meet the requirements of the [CWA], the
EPA promulgates standards for those states.” Id. at 1127.1 In
1

The dissent has mischaracterized the relationship between the states
and EPA. See Dissent at 2169 (“it is the state that chooses if and how to
implement a nonpoint source of a TMDL”); 2170 (“the majority opinion
incorrectly suggests that the EPA, and not California, controls nonpoint
water standards”). As we have pointed out, the state has the initial responsibility to set water standards, but EPA may step in if the state fails to promulgate standards entirely or fails to set appropriate standards. See 33
U.S.C. § 1313(b)(1) (authorizing EPA to set water quality standards for a
state), (c)(3)-(4) (similar); Pronsolino, 291 F.3d at 1129 (noting that EPA
disapproved California’s 1992 list and added seventeen water segments to
a new § 303 list), 1140 (“Congress definitely requires that the states or the
EPA establish TMDLs for all pollutants in waters in § 303(d)(1) lists”).

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the State of California, any water bodies included on the
§ 303(d) list are also subject to state regulations. CAL. CODE
REGS. tit. 14, § 898.
Redwood Creek was first placed on California’s § 303(d)
list in 1992. It has remained on the list since that time. In
2006, California reevaluated its § 303(d) list, as it is required
by statute to do periodically, 33 U.S.C. § 1313(d)(2), and submitted it to EPA for approval, with Redwood Creek listed as
being impaired by both sediment and temperature. EPA
approved the list, including the Redwood Creek’s listing as an
impaired water body. See 72 Fed. Reg. 12175 (2007).
Barnum sued EPA in federal district court, challenging
EPA’s decision to “retain Redwood Creek on the Section
303(d) list of impaired water bodies” as arbitrary and capricious. See 5 U.S.C. § 706(2)(A). Barnum claimed two bases
for its injury: First, it argued that, as a consequence of EPA’s
decision, it had “suffered extra costs to satisfy land use
restrictions” triggered by the Redwood Creek’s § 303(d) listing, and second, that it “has seen its property values
decrease.”
EPA moved for dismissal for lack of constitutional standing. The district court granted that motion without prejudice
for leave to amend the complaint. The district court found that
Barnum’s first complaint “offered only conclusory and nonspecific claims of injury” and failed to establish that their
alleged injuries “were caused by or are in any way connected
to the EPA’s 2006 approval of California’s listing of Redwood Creek.” Specifically, the district court found that Barnum had “identifie[d] no connection between the state
regulation causing its injury and the EPA’s Section 303(d)
action” and that Barnum had “offer[ed] nothing to support” its
assertion of reduced property values, “other than the bare allegation itself.”

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Barnum moved to file an amended complaint and attached
declarations by Thomas M. Herman and James M. Able, California forestry experts, who explained that the property value
of Barnum’s land had decreased because of the Redwood
Creek’s § 303(d) listing. But the district court denied Barnum’s motion because “the proposed amendment would not
cure the standing problem,” dismissed the action, and entered
final judgment against Barnum. Barnum here appeals.2
II.

STANDING

The district court’s decisions to dismiss Barnum’s initial
complaint, to dismiss Barnum’s motion to file an amended
complaint, and to enter judgment dismissing Barnum’s case
all center on a single question: Does Barnum have standing to
challenge EPA’s retention of Redwood Creek as a CWA
§ 303(d) impaired water body? Specifically at issue here is
whether Barnum’s amended complaint meets the constitutional requirements for standing.3
[1] Article III of the U.S. Constitution confines federal
courts to hearing only “cases” and “controversies.” Standing
is a core component of the Article III case or controversy
requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). To establish constitutional standing, plaintiffs
2

Because standing is a question of law, we review the district court’s
determination de novo. See San Diego Cnty. Gun Rights Comm. v. Reno,
98 F.3d 1121, 1124 (9th Cir. 1996) (stating that standing is a question of
law to be reviewed de novo); Smith v. Pac. Props. and Dev. Corp., 358
F.3d 1097, 1100 (9th Cir. 2004) (“Whether . . . a denial [of leave to
amend] rests on an inaccurate view of the law and is therefore an abuse
of discretion requires us to review the underlying legal determination de
novo.” (internal citations omitted)).
3
Because we find that Barnum’s claim that the inclusion of Redwood
Creek on the § 303 list caused its property values to diminish, we do not
reach Barnum’s second ground, that its property values diminished
because the § 303 listing triggers additional California regulations that
impose additional costs on Barnum’s use of its property.

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must demonstrate three elements, which constitute the “irreducible . . . minimum” of Article III standing, id. at 560: (1)
injury-in-fact—plaintiff must allege “concrete and particularized” and “actual or imminent” harm to a legally protected
interest, id. at 560-61; (2) causal connection—the injury must
be “fairly traceable” to the conduct complained of, Allen v.
Wright, 468 U.S. 737, 751 (1984); and (3) redressability—a
favorable decision must be “likely” to redress the injury-infact, Lujan v. Defenders of Wildlife, 504 U.S. at 560-61. We
will discuss each element in turn.
A.

Injury-in-Fact

We begin our analysis with the first element of constitutional standing: injury-in-fact. We acknowledge injury-in-fact
was not raised as an issue for appeal: the district court found
EPA had conceded the existence of Barnum’s injury-in-fact,
and neither party argued the existence of injury-in-fact in their
briefs on appeal. But because “standing is a necessary element
of federal-court jurisdiction,” Thomas v. Mundell, 572 F.3d
756, 760 (9th Cir. 2009), we must ensure Barnum has met all
the requirements of constitutional standing. Understanding
Barnum’s injury will help frame the remaining issues as well.
[2] Barnum alleges as its injury-in-fact that it suffered a
reduction in the economic value of its property in the Redwood Creek watershed. A specific, concrete, and particularized allegation of a reduction in the value of property owned
by the plaintiff is sufficient to demonstrate injury-in-fact at
the pleading stage. See Lujan, 504 U.S. at 560. In this case,
Barnum has submitted two declarations by forestry experts,
testifying to the property value reductions. Certainly the
Supreme Court has been satisfied by less. In Lucas v. South
Carolina Coastal Council, 505 U.S. 1003 (1992), for example, the Court found that a complaint including a request for
“damages for the temporary taking of [the plaintiff’s] property” was sufficient to establish injury-in-fact at the pleading

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stage. Id. at 1014 n.3. Thus we hold Barnum has met its burden of demonstrating injury-in-fact.
Unlike injury-in-fact, the remaining two elements of constitutional standing are disputed in this appeal: causal connection, that is whether Barnum’s alleged injuries are fairly
traceable to EPA’s decision to retain Redwood Creek as an
impaired water body under CWA § 303(d); and redressability, whether a favorable judgment for Barnum in its case
against EPA would resolve or ameliorate Barnum’s alleged
injury-in-fact.
B.

Causal Connection

Barnum argues that its Redwood Creek property value
reduction is causally connected to EPA’s retention of Redwood Creek as an impaired water body in “two distinct and
individually adequate” ways: (1) “the Section 303(d) listing
has reduced the value of Barnum’s property by feeding the
public’s and the market’s perception that Barnum’s timber
operations are restricted by the listing”; and (2) “the Section
303(d) listing has reduced the value of Barnum’s property by
triggering the application of Section 898 of the Forest Practice
Rules.” See CAL. CODE REGS. tit. 14, § 898. Because we credit
Barnum’s first argument (i.e., the effect of EPA’s action on
the market) and hold that Barnum has established a causal
connection between its injury-in-fact and EPA’s actions, we
do not address Barnum’s second causal connection argument.
[3] Barnum’s amended complaint asserted that “Barnum’s
property in the Redwood Creek watershed has lost value simply because of the inclusion of Redwood Creek on the
§ 303(d) list as impaired by sediment and by temperature.” As
evidence of this, Barnum submitted two declarations by California Registered Professional Foresters, each testifying that
“[t]he United States Environmental Protection Agency’s listing of Redwood Creek as an impaired water body under the
CWA has significantly reduced the value of Barnum’s timber-

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lands in the Redwood Creek watershed.” (Declaration of
Thomas M. Herman, an attorney, licensed professional forester, and Former Director and President of the California
Licensed Foresters Association; Declaration of James L.
Able, a forestry consultant and licensed professional forester.)
Herman’s declaration explains that public perception is the
basis for Barnum’s belief that EPA’s listing is causally connected to the reduction in Barnum’s Redwood Creek watershed property value: “The public has ready access to the
Section 303(d) listings, including the listing of Redwood
Creek. When a listing occurs, the public perceives—whether
accurately or not—that the subject property will be subject to
additional and onerous regulation. . . . In this case, the market
reaction is such as to deem Barnum’s property to be devalued
because of the § 303(d) listing.”
[4] Barnum’s amended complaint, including the two declarations, is more than sufficient to support the causal connection element of Article III standing at this early stage of the
proceeding. As the Supreme Court has noted, the evidence
necessary to support standing may increase as the litigation
progresses: “Since they are not mere pleading requirements
but rather an indispensable part of the plaintiff’s case, each
[constitutional standing] element must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Lujan v.
Defenders of Wildlife, 504 U.S. at 561 (1992); see also Lucas,
505 U.S. at 1014 n.3 (“Lujan, since it involved the establishment of injury in fact at the summary judgment stage,
required specific facts to be adduced by sworn testimony; had
the same challenge to a generalized allegation of injury in fact
been made at the pleading stage, it would have been unsuccessful.”). Here, where Barnum has alleged specific facts
plausibly explaining causality and supported by competent
declarations, Barnum has more than met its burden to demonstrate the causal connection element of Article III standing at
the pleading stage.

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C.

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Redressability

[5] Determining redressability “requires an analysis of
whether the court has the power to right or to prevent the
claimed injury.” Gonzales v. Gorusch, 688 F.2d 1263, 1267
(9th Cir. 1982). In this case, if Barnum were successful in
showing that EPA’s listing of Redwood Creek was arbitrary
or capricious, the district court has the power under the APA
to grant the declaratory judgment and injunctive relief Barnum requests, which remedies would result in Redwood
Creek being removed from the § 303(d) impaired water
bodies list. 5 U.S.C. § 706(2)(A); see Nw. Envtl. Def. Ctr. v.
Bonneville Power Admin., 477 F.3d 668, 679-80 (9th Cir.
2007) (holding that the plaintiff met the redressability requirement of constitutional standing to challenge agency action
under the APA because “all the inherent equitable powers of
the District Court are available for the proper and complete
exercise of its jurisdiction”) (citation and alteration omitted).
And, for reasons explained in the previous section, such
removal will resolve the injury Barnum has allegedly experienced from its property’s proximity to a § 303(d) impaired
water body. Thus, if Barnum is successful on the merits at the
district court, it is not “merely speculative . . . that the injury
will be redressed.” Tyler v. Cuomo, 236 F.3d 1124, 1133 (9th
Cir. 2000) (internal citation omitted).
The district court relied primarily on our opinion in San
Diego County Gun Rights Committee v. Reno, 98 F.3d 1121
(9th Cir. 1996), but we think that case is distinguishable. In
San Diego County, Appellant-Plaintiffs were two associations
and three individuals, each of whom attempted to claim injuries resulting from passage of the Crime Control Act, a federal law that amended the Gun Control Act of 1968 to
prohibit “the manufacture, transfer or possession of semiautomatic assault weapons and the transfer or possession of large
capacity ammunition feeding devices.” San Diego Cty., 98
F.3d at 1124 (internal quotation marks removed). The plaintiffs had argued that the Crime Control Act’s bans on certain

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weapons had caused the price of those banned and grandfathered devices to increase, “thus hindering [the plaintiffs’]
ability to exercise their constitutional rights” to buy guns. Id.
at 1130. Referring generally to the viability of an economic
injury as a claim for injury-in-fact, we acknowledged that
“[e]conomic injury is clearly a sufficient basis for standing.”
Id. But we noted that in the case at hand, the plaintiffs’ economic injury claim nevertheless “fail[ed] the second prong of
the Lujan test”—causal connection. Id.
The San Diego County plaintiffs had failed to demonstrate
the causal connection element of constitutional standing on
economic injury grounds because they provided no evidence
attesting that the federal government’s actions actually did
cause an increase in the prices, id. (“In California, the
Roberti-Roos Assault Weapons Control Act [a state law] . . .
also bans the manufacture, sale, and distribution of certain
delineated assault weapons. Thus, any finding that the Crime
Control Act had a significant impact on the increase of prices
of weapons would be tantamount to sheer speculation.”), nor
could we find that the challenged law required an increase in
the prices, id. (“Although the Crime Control Act may tend to
restrict supply, nothing in the Act directs manufacturers or
dealers to raise the price of regulated weapons”).
The district court concluded that the failings of the plaintiffs’ case in San Diego were the failings of Barnum’s case—
“where injury is alleged to occur within a market context, the
concepts of causation and redressability become particularly
nebulous and subject to contradictory, and frequently unprovable, analyses.” Id. (quoting Common Cause v. Dep’t of
Energy, 702 F.2d 245, 251 (D.C. Cir. 1983)). Barnum’s complaint presents no such defects here.
First, Barnum provided two declarations as evidence that
the challenged government action—EPA’s listing of Redwood Creek as a § 303(d) impaired water body—has in fact
caused its property value to decrease. In San Diego County,

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the plaintiffs contested government action that affected entire
markets and correspondingly alleged price increases to the
market as a whole, in which they merely hoped to be buyers.
Id. In contrast, Barnum’s allegation that the economic value
of its property has been affected by the government action on
an adjoining waterway leaves open the possibility Barnum
could isolate the effects of the government action on its property.
[6] Second, Barnum’s claim to diminished value does not
depend on the unpredictable actions of third parties.4 The Herman and Able declarations offer a commonsense assessment
of the market for real property—in general, regulatory restrictions on one property that affect the uses to which a second
property can be put will lower the second property’s value.5
The dissent’s claim that “a general averment that conduct may
decrease property value is not sufficient where that harm is
not yet concrete and remains speculative,” Dissent at 2174, is
4
The dissent’s repeated concern that it is California’s regulations that
have caused Barnum’s alleged injuries misunderstands our opinion. See
Dissent at 2179. Whether Barnum might have a cause of action against
California does not affect whether Barnum has standing to sue EPA, just
as whether Barnum will be successful on the merits in its suit against EPA
does not affect whether Barnum has standing to pursue such a suit. At
present, we are only concerned with whether Barnum’s amended complaint has met the preliminary requirements to pursue its challenge against
EPA in federal court. The questions of whether Barnum will win, or will
be able to demonstrate standing later at the summary judgment stage, or
would be able to sue California in a similar action are not before us.

We note that much of the dissent addresses Barnum’s second ground for
standing, which we have declined to address. See supra n.3.
5
The dissent criticizes the declarations as “lack[ing] any sufficient foundation” and “[w]ithout any described polling regarding public perceptions
and without any described experience in property appraisals.” Dissent at
2171-72 n.2. Barnum first included the declarations in its amended complaint, likely to try to satisfy the district court, although nothing in the federal rules requires such declarations to support allegations in a complaint.
The dissent’s criticism seems out of place at this stage of the proceedings
and would be better reserved for the merits.

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simply inconsistent with the cases. See, e.g., Friends of the
Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167,
183-84 (2000) (determining a plaintiff’s declaration that “her
home, which [i]s near [defendant]’s facility, had a lower value
than similar homes located farther from the facility, and that
she believed the pollutant discharges accounted for some of
the discrepancy” was an “affidavit[ ] and testimony presented” properly supporting the plaintiff’s claim that the challenged action had “directly affected [her] . . . economic interests”); Clinton v. City of N.Y., 524 U.S. 417, 433 (1998) (“The
Court routinely recognizes probable economic injury resulting
from governmental actions that alter competitive conditions
as sufficient to satisfy the Article III ‘injury-in-fact’ requirement . . . . It follows logically that any . . . petitioner who is
likely to suffer economic injury as a result of governmental
action that changes market conditions satisfies this part of the
standing test”) (citation and alterations omitted); see also 3
RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE § 16.4 at
1125 (4th ed. 2002) (“Many cases confer standing on consumers injured by an agency action that is likely to yield higher
prices, on employers whose jobs or wage levels are jeopardized by an agency action that is likely to have an adverse
effect on their employers’ revenues, or on any other individual or group that is likely to suffer an adverse economic effect
as a result of an agency action.”). Here, EPA’s action will
lead to the imposition of regulatory restrictions on Redwood
Creek, and Barnum has alleged that its property will be
affected and that its property will decrease in value as a consequence. Where a successful challenge to EPA’s action
could reduce or eliminate those regulatory restrictions, causation and redressability are satisfied.
We do not think Barnum must allege that EPA is the sole
source of the devaluation of its property. The dissent’s claim
that “the listing by the EPA is one factor, among many, that
might affect the value of its property” may well be correct,
Dissent at 2178, but we think the point is irrelevant to whether
Barnum has standing to challenge EPA’s action. Barnum has

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alleged that at least EPA’s listing of Redwood Creek has
affected the value of its property. It need not eliminate any
other contributing causes to establish its standing. See Ocean
Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846,
860 (9th Cir. 2005) (finding the injury fairly traceable to the
defendant, even though “other factors may also cause” the
injury, because “the link between the [challenged action] and
[the alleged injury] is not tenuous or abstract”).
III.

CONCLUSION

[7] Because Barnum has sufficiently demonstrated its
injury-in-fact, the causal connection between the alleged
injury and the Appellee-Defendant, and the redressability of
its claim should it be successful on the merits, Barnum has
met the requirements of Article III standing. We conclude that
the district court erred in denying the motion to amend. We
vacate the district court’s entry of judgment, reverse the district court’s denial of Barnum’s motion to amend its complaint, and remand for further proceedings.
REVERSED AND REMANDED.

GWIN, District Judge, dissenting:
Plaintiff-Appellant Barnum Timber Co. (“Barnum”)
appeals the district court’s dismissal of its complaint against
Defendants-Appellees United States Environmental Protection Agency and Lisa P. Jackson, Administrator of the Environmental Protection Agency (collectively, “EPA”). The
district court dismissed the complaint after finding Barnum
lacked standing to challenge EPA’s approval of California’s
proposed list of environmentally challenged water bodies.
Because I believe that Barnum’s claimed injuries are, at
best, conjectural or hypothetical; because I believe there is no

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causal connection between EPA’s acts and the speculative
injuries claimed by Barnum; and because I believe that nothing EPA could do would redress Barnum’s speculative injury,
I dissent. As described, any injury that Barnum has suffered—
and it is nowhere clear that Barnum has suffered any injury—
results from California’s acts and could not be remediated by
EPA. For these reasons, I would find that Barnum does not
have standing to challenge EPA’s action. Accordingly, I
respectfully dissent from the majority opinion and would
affirm the ruling of the district court.
I.

BACKGROUND

Appellant Barnum is a California limited partnership that
owns property in the Redwood Creek watershed in Northwestern California. Barnum challenges the inclusion of Redwood Creek in California’s EPA-approved Section 303(d) list
of the Clean Water Act (“CWA”), 33 U.S.C. § 1313(d).
Congress enacted the CWA in 1972, amending earlier federal water pollution laws that had proven ineffective. Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir. 2002). With
the 1972 Act, Congress explicitly “recognize[d], preserve[d],
and protect[ed] the primary responsibilities and rights of
states to prevent, reduce, and eliminate pollution, [and] to
plan the development and use . . . of land and water resources
. . . .” CWA § 101(b), 33 U.S.C. § 1251(b).
The Act adopts different methods to address “point
sources” and “nonpoint sources” of pollution. “Point sources
of pollution are those where the pollutant flows from a discrete conveyance, such as a pipe or tunnel.” Friends of Pinto
Creek v. EPA, 504 F.3d 1007, 1011 (9th Cir. 2007) (internal
quotation omitted). Nonpoint sources of pollution are nondiscrete sources, such as runoff from a farmland or timber
harvesting. Id. The Act mandates federal “effluent limitations” for point sources, defined as restrictions of pollutants
discharged from point sources, which require “the application

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of the best practicable control technology currently available
. . . .” CWA § 301(b)(1), 33 U.S.C. § 1311(b)(1); see CWA
§ 502(11), 33 U.S.C. § 1362(11). In contrast, the Act “provides no direct mechanism to control nonpoint source pollution,” instead using the states to regulate nonpoint sources and
encouraging states through the “threat and promise of federal
grants . . . to accomplish this task.” Pronsolino, 291 F.3d at
1126-27 (internal citations omitted).
CWA Section 303 is central to this litigation. CWA Sections 303(a)-(c) allows states to set water quality standards for
all waters within their boundaries. 33 U.S.C. §§ 1313(a)-(c).
Under the CWA scheme, each state compiles a list of problematic waters, known as the “Section 303(d) list,” and submits that list to EPA for approval.
Each state must submit its Section 303(d) list with proposed limitations—“total maximum daily load” (“TMDL”)—
to EPA every two years. 40 C.F.R. § 130.7(d)(1). EPA then
either approves or disapproves the waters identified in the
state lists and the TMDL pollution loads established by the
states. CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2). If EPA
approves a state’s Section 303(d) list and the TMDL pollution
loads included in the list, the state must incorporate them into
its “continuing planning process,” as required under Section
303(e).1 33 U.S.C. § 1313(d)(2).
Although Section 303(d) requires states to submit lists and
pollution loads based on both point sources and nonpoint
sources of pollution, it is the state that chooses if and how to
implement a nonpoint source provision of a TMDL. Pron1

Section 303(e) requires each state to have a “continuing planning process” which must include, inter alia, effluent limitations and schedules of
compliance “at least as stringent as those required by [the Act],” TMDLs
as required under Section 303(d), and procedures for revising and implementing water quality standards as required. 33 U.S.C. §§ 1313(e)(1), (3).
Each state must submit its Section 303(e) plan to the EPA for approval.
33 U.S.C. § 1313(e)(2).

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solino, 291 F.3d at 1128-29. The Act simply provides financial incentives to encourage states to implement state
regulations greater than those required under the CWA, such
as nonpoint source TMDLs. Id. In other words, nonpoint loading limitations are only enforced under state law. See National
Resources Defense Council v. EPA, 915 F.2d 1314, 1316 (9th
Cir. 1990) (“The [Clean Water] Act thus banned only discharges from point sources. The discharge of pollutants from
nonpoint sources-for example, the runoff of pesticides from
farmlands-was not directly prohibited.”).
In amending the CWA in 1977, Congress recognized that
states, not the federal government, would regulate nonpoint
sources of pollution. See S. Rep. No. 95-370 at 635, 642-43
(1977) (“Congress made a clear and precise distinction
between point sources, which would be subject to direct Federal regulation, and nonpoint sources, control of which was
specifically reserved to State and local governments . . .”).
Thus, as this court has previously explained, “[t]he upshot of
this intricate scheme is that the CWA leaves to the states the
responsibility of developing plans to achieve water quality
standards if the statutorily-mandated point source controls
will not alone suffice, while providing federal funding to aid
in the implementation of the state plans.” Pronsolino, 291
F.3d at 1128-29. However, in discussing standing, the majority opinion incorrectly suggests that the EPA, and not California, controls nonpoint water standards.
Redwood Creek first appeared on California’s EPAapproved Section 303(d) list in 1992. In both 2002 and 2006,
California submitted Section 303(d) lists to EPA that included
Redwood Creek as impaired by both sediment and temperature. The EPA listing does not directly impact any use of Barnum’s property. And in both 2002 and 2006, EPA adopted
California’s recommendations and approved California’s listing of Redwood Creek as impaired by sediment and temperature.

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On April 16, 2008, Barnum filed a Complaint in the district
court for the Northern District of California, alleging that
EPA violated the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A), by arbitrarily and capriciously approving a list of
impaired waters submitted by California pursuant to Section
303(d) of the Clean Water Act, 33 U.S.C. § 1313(d). Barnum
claims that it has been injured as a result of EPA approval of
California’s Redwood Creek’s Section 303(d) listing because
the listing diminishes the value of its lands.
EPA moved to dismiss the complaint for lack of subject
matter jurisdiction, saying that Barnum does not have standing to bring this suit. The district court granted the Defendants’ motion to dismiss, ruling that Barnum lacked standing
after finding that the alleged injury was not fairly traceable to
EPA and would not likely be redressed by a ruling in Barnum’s favor.
On October 17, 2008, Barnum filed a motion for leave to
file an amended complaint, attaching a proposed new complaint. In the proposed amended complaint, Barnum again
alleged that the listing of Redwood Creek will cause a
decrease in the value of its property and also submitted declarations from two licensed professional foresters to support its
motion for leave to amend.2 The district court again concluded
2
These declarations lack any sufficient foundation. For example,
Thomas Hermann describes experience with forestry management but
gives no description of land value appraisal experience. He then acknowledges that “[o]ther regulations and laws undoubtedly reduce the value of
Barnum’s property” but then gives the opinion that the 303(d) listing “will
undoubtedly reduce the value of Barnum’s property.” Hermann reaches
this opinion against the admitted backdrop that any number of state regulations impacts the value of the Barnum property and that “[i]t is not feasible to isolate the precise incremental loss in value to Barnum’s property
caused by the Section 303(d) listing.” Hermann then justifies his opinion
that the 303(d) listing diminishes the property values: “When a listing
occurs, the public perceives-whether accurately or not-that the subject
property will be subject to additional and onerous regulation.” Without

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that “a broad spectrum of factors, both regulatory and nonregulatory, affect the value of plaintiff’s property.” The district court held that the new declarations offered nothing to
controvert its earlier conclusion that Barnum “had not even
attempted, much less succeeded, to isolate Section 303(d) listing from other factors affecting the value of its property.” The
court denied Barnum leave to amend the complaint and
entered a final judgment in EPA’s favor. Barnum filed a
notice of appeal to this Court on December 15, 2008.
On appeal, Barnum advances two theories in support of its
argument that it has standing to challenge EPA’s action.
Under both of those theories, Barnum alleges that the 303(d)
listing will cause the value of its property to decrease. First,
Barnum says that EPA’s approval of Redwood Creek on California’s proposed 303(d) triggered the application of California Forestry Regulation § 898, which in turn imposes analysis
and mitigation requirements upon “any portion of a waterbody located within or downstream of the proposed timber
operation that is listed as water quality limited under Section
303(d) of the Federal Clean Water Act,” CAL. CODE REGS. tit.
14, § 898, that will reduce Barnum’s property value. Under its
second theory, Barnum alleges that EPA’s acceptance of California’s listing of Redwood Creek on the 303(d) list directly
caused a devaluation of Barnum’s property because the public
will perceive its land as subject to “additional and onerous regulation.”3
any described polling regarding public perceptions and without any
described experience in property appraisals, the majority opinion accepts
Hermann’s opinion without considering what training, education or experience qualifies him to say what “the public perceives.” Thus, as it is Barnum’s burden to provide “competent evidentiary support” for its
jurisdictional averments, the Court may properly find that these unsupported affidavits are insufficient proof of standing. See, e.g., Thomson v.
Gaskill, 315 U.S. 442, 446 (1942).
3
This Court reviews a district court’s dismissal for lack of standing de
novo. Rattlesnake Coalition v. EPA, 509 F.3d 1095, 1100 (9th Cir. 2007).

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II.

2173

ANALYSIS

In order to satisfy the “irreducible constitutional minimum
of standing,” a plaintiff must establish: (1) that it has 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;” (2) that the injury
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;” and (3) that it is “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) (internal quotations and
citations omitted).
I will examine each prong of the standing analysis to determine if Barnum possesses requisite standing to bring this suit.
II.A

Injury in Fact

The majority opinion appropriately begins its analysis of
standing on the first factor of the Lujan test, even though EPA
concedes that this element is met. As “standing is a necessary
element of federal-court jurisdiction[,]” the Court must consider it to ensure that Barnum possesses constitutional standing. See Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir.
2009). The majority finds that this prong is satisfied because
The Court reviews the district court’s factual findings relevant to standing
for clear error. Id. Where standing is raised in connection with a motion
to dismiss, the court accepts as true all material factual allegations in the
complaint. Levine v. Vilsack, 587 F.3d 986, 991 (9th Cir. 2009).
The Court reviews a district court’s denial of leave to amend for abuse
of discretion. United States v. SmithKline Beecham, Inc., 245 F.3d 1048,
1051 (9th Cir. 2001). However, “whether such a denial rests on an inaccurate view of the law and is therefore an abuse of discretion, requires us to
review the underlying legal determination de novo.” Smith v. Pacific Properties and Development Corp., 358 F.3d 1097, 1100 (9th Cir. 2004) (internal citations omitted).

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Barnum alleges that the value of its property decreased due to
the listing of Redwood Creek’s in the Section 303(d) listing,
saying that a “specific, concrete, and particularized allegation
of a reduction in the value of property owned by the plaintiff
is sufficient to demonstrate injury-in-fact at the pleading
stage.” Majority at 2160. However, this rule actually leads to
exactly the opposite result.
Economic injury, such as a decrease in property value, is
often a sufficient basis for standing. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992); San Diego
County Gun Rights Committee v. Reno, 98 F. 3d 1121, 1130
(9th Cir. 1996) (citing Central Ariz. Water Conservation Dist.
v. EPA, 990 F.2d 1531, 1537 (9th Cir. 1993)). Nonetheless,
a general averment that conduct may decrease property value
is not sufficient where that harm is not yet concrete and
remains speculative.
Here, under either theory of harm, any injury that Barnum
may suffer related to its property value is highly speculative
and would depend upon the occurrence of a long chain of
future events, including: Redwood Creek remaining on California’s CWA Section 303(d) listing for temperature and sediment, California developing a temperature and sediment
TMDL for Redwood Creek, California developing a TMDL
that affects timber, and finally, California applying that plan
in a manner that affects Barnum. If any of these contingent
events—these are only a few examples—does not occur, then
there would be no reason for Barnum’s property value to fall.
As any injury alleged by Barnum is speculative and uncertain, I disagree with the majority that this prong of the standing inquiry is met. Barnum is unable to identify any particular
conduct that plausibly caused a decrease in property value.
Barnum is also unable to explain any decrease in value other
than by vaguely pointing to market factors, and even then
only positing what “the public perceives—whether accurately
or not.” These allegations are not sufficient to satisfy the con-

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stitutional requirements of standing. See Whitmore v. Arkansas, 495 U.S. 149, 168 (1990) (“Allegations of possible future
injury do not satisfy the requirements of Article III”); Hells
Canyon Preservation Council v. U.S. Forest Service, 593 F.3d
923, 930 (9th Cir. 2010) (holding that plaintiffs lacked standing where the “precise injury” could not be identified); Louisiana Envt’l Action Network v. Browner, 87 F.3d 1379, 138284 (D.C. Cir. 1996) (holding that plaintiffs lacked standing
where injury depended upon a future chain of events). As
such, I would affirm the district court’s ruling on this ground.
II.B

Fairly Traceable

Although I disagree with the majority and find that the district court’s opinion should be affirmed because Barnum’s
allegations do not meet the first prong of the test for standing,
I proceed to the second prong: whether the alleged injury is
“fairly traceable” to EPA’s conduct. Here, the majority opinion only analyzes Barnum’s second theory of harm—that the
inclusion of Redwood Creek on the Section 303(d) listing will
directly cause a decrease in property value—and concludes
that this prong of the standing test is met. I also disagree with
the majority on this prong of the standing inquiry. I will
address both of Barnum’s theories of harm independently,
since each is based on a distinct causation chain.
i.

Section 303(d) Listing as Trigger for California Forestry Regulations

The “fairly traceable” prong of Lujan’s standing test does
not require that the defendant directly cause the plaintiff’s
injury or even that the defendant’s conduct be the last link in
the chain of causation. Bennett v. Spear, 520 U.S. 154, 168-69
(1997). However, an injury is not fairly traceable if the injury
“results from the independent action of some third party not
before the court.” Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 41-42 (1976). In determining if the injury alleged is
fairly traceable to EPA’s conduct, the Court must consider

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whether EPA’s action had some “determinative or coercive
effect” upon the state of California that produced Barnum’s
injury. Bennett, 520 U.S. at 169.
The district court found that while California Forestry Regulation § 898 imposed requirements on Barnum, the injury
was not fairly traceable to EPA’s actions because it required
the independent intervening action of a third party, the state
of California. The district court’s conclusion is correct.
In Bennett v. Spear, a group of ranchers and irrigation districts sued the Fish and Wildlife Service to invalidate a Biological Opinion that found a water project threatened species
protected by the Endangered Species Act. 520 U.S. 154, 15859 (1997). The Court concluded that the injury was fairly
traceable to the Fish and Wildlife Service because the Biological Opinion had a “powerful coercive effect on the action
agency” since the statutory scheme presupposed that the Biological Opinion would play a central role in the action agency’s decision-making process, and action agencies very rarely
choose to engage in conduct that the Service has concluded
was likely to jeopardize an endangered species. Id. at 169.
The Court found that the Biological Opinion in Bennett had
“direct and appreciable consequences.” Id. at 178.
The current suit is distinguishable, because EPA’s Section
303(d) listing does not have a similarly “powerful coercive
effect” upon California’s regulatory bodies. As previously
described, while the CWA establishes procedures for the
states to identify polluted waterbodies and to set water quality
standards, the statutory scheme gives the states broad discretion in implementing their plans. Although Section 303(d)
requires the California Water Boards to identify impaired
waters and to establish total maximum daily loads, Section
303(d) does not direct or require the California Department of
Forestry to enact or to enforce Section 898 or to use any specific means to accomplish the TMDL.

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Moreover, and further undercutting Barnum’s position,
Barnum’s injury is most directly traceable to California’s regulations, not EPA’s. California enjoys broad discretion to regulate Redwood Creek as it sees fit within the statutory scheme
established by the CWA. EPA’s approval of the Section
303(d) listing has no “determinative or coercive effect” upon
California’s enactment, implementation, or enforcement of its
Forest Practice Rules. California independently chose to condition application of one of its Forest Practice regulations on
Section 303(d) listing. But more importantly, California alone
decides what, if any, restrictions to place upon Barnum’s
operations.
Thus, I find that, under its first theory of harm, Barnum
fails to meet the “fairly traceable” prong of the Lujan test as
any alleged harm is caused not by EPA, but by the independent action of the state of California.
ii.

Section 303(d) Listing Directly Causing a Decrease in
Property Value

The majority opinion analyzes Barnum’s second theory of
harm, finding this prong of the standing inquiry is met
because Barnum sufficiently sets forth a “causal connection”
between the alleged injury-in-fact (decrease in property value)
and EPA’s action.
I disagree. The majority concludes that Barnum’s bare allegation that EPA’s approval of California’s decision to include
Redwood Creek in the Section 303(d) list is sufficient to
establish causation. Although the majority seems to rely heavily upon two declarations submitted by Barnum in support of
its motion for an amended complaint, neither of these declarations supplement Barnum’s allegations in any appreciable
way. Rather, each simply repeats the allegation that EPA’s
decision to approve California’s Section 303(d) listing caused
a decrease in property value. Neither the proposed amended
complaint nor the foresters’ affidavits addresses the fatal flaw

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in Barnum’s allegations. Although Barnum alleges that the
Section 303(d) list directly caused a decrease in its property
value, Barnum never actually asserts a plausible allegation
that the decrease in property value is caused by the actions of
EPA.4
The majority spends several pages struggling to distinguish
this court’s prior decision in San Diego County Gun Rights
Committee v. Reno. 98 F.3d 1121. I disagree with that analysis and would rely upon San Diego County; I think that case
is sufficiently related and should be seen as precedent.
First, similar to San Diego County, a multitude of factors
affects Barnum’s alleged harm. At best, Barnum alleges that
the listing by EPA is one factor, among many, that might
affect the value of its property. Many factors, such as California state regulations, other federal regulations, market forces,
or even natural events, affect the value of Barnum’s property.
Specifically, timber harvesting in California is subject to
numerous state regulations unrelated to the EPA listing. [See
E.R. at 9 (“California’s forestry rules comprehensively regulate [Barnum’s] conduct irrespective of Redwood Creek’s
Section 303(d) listing”) (citing Cal. Pub. Res. Code §§ 458182; Cal. Code Regs. tit. 14 §§ 897, 911-29).] Importantly, the
factual setting is quite similar to that in San Diego County,
where both federal and state statutes banned the manufacture,
4
The majority opinion does not subject Barnum’s allegation that EPA
listing caused the decrease in property value to any scrutiny, and instead
accepts that allegation as proof of causation. Majority at 2161-62. However, Barnum’s alleged injuries all stem from California’s actions, and not
the actions of EPA. Barnum’s allegation that the injury is connected to
EPA — although that connection is pled in the complaint — is not at all
plausible and cannot support constitutional standing. FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 231 (1990) (“standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively
appear on the record.”) (internal quotation marks and citations omitted).
Here there is no affirmative proof on the record that EPA listing caused
the alleged decrease in property value.

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sale, and distribution of certain assault weapons. 98 F.3d at
1124. As in San Diego County, other factors much more
directly affect the property value of this property. This uncertain impact weighs strongly against a finding that causation is
met.
Second, and more importantly, in concluding that EPA listing sufficiently affects property values to meet the causation
requirement, the majority opinion incorrectly characterizes
the Section 303(d) listing as a “regulatory restriction[ ] on one
property that affect[s] the uses to which a second property can
be put.” Majority at 2179. This description leads to the seemingly natural conclusion that the listing more directly affects
the property value. However, this claim is simply not true—
the listing does not impose any direct regulations. Any future
regulations imposed on nonpoint sources of water pollution in
Redwood Creek would be enacted, if at all, by the state of
California, and not by EPA. Pronsolino, 291 F.3d at 1128-29.
Any injury to Barnum would only occur should California
establish a temperature or sediment TMDL for Redwood
Creek and adopt that plan in a manner that affects Barnum’s
property. The injury to Barnum, if any, would be traceable to
California, rather than EPA.
Indeed, this circuit previously acknowledged that “the
CWA leaves to the states the responsibility of developing
plans to achieve water quality standards if the statutorilymandated point source controls will not alone suffice, while
providing federal funding to aid in the implementation of the
state plans.” Id. “California [chooses] both if and how it
would implement the [ ] TMDL. States must implement
TMDLs only to the extent that they seek to avoid losing federal grant money; there is no pertinent statutory provision otherwise requiring implementation of § 303 plans or providing
for their enforcement.” Id. at 11405; see also Defenders of
5

“California is free to select whatever, if any, land-management practices it feels will achieve the load reductions called for by the TMDL. Cal-

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Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir. 2005)
(“Congress clearly intended the EPA to have a limited, nonrulemaking role in the establishment of water quality standards by states.”) (citation and internal quotation omitted);
Sierra Club v. Meiburg, 296 F.3d 1021, 1026-27 (11th Cir.
2002) (“Georgia has the primary authority and responsibility
for issuing permits and controlling nonpoint source pollution
in that state. It also has both the authority and the duty to
compile the list of limited segments (the § 303(d) list), and
establish TMDLs for each waterbody on the list.”).
A break of this magnitude in the causal chain would lead
to the failure of a cause of action in the tort context, and it is
also fatal here. See Lujan, 504 U.S. at 560 (“injury must not
be the result of the independent action of some third party not
before the court”) (citations and internal quotations omitted);
San Diego County, 98 F.3d 1130 (holding that standing not
met where harm is the result of independent third party not
before the court).
The majority opinion seeks to distinguish San Diego
County by stating that the plaintiffs in that case failed to demonstrate a causal connection because “they provided no evidence attesting that the federal government’s actions actually
did cause an increase in the prices . . . ,” whereas here, Barnum alleges that the Section 303(d) listing directly caused a
decrease in the property value of its property. Majority at
2164. However, as explained, the current claim fails for the
same reason. If the value of Barnum’s property actually
decreases, it is not because of EPA’s conduct, but rather
because the listing indicates that the property may be subject
ifornia is also free to moderate or to modify the TMDL reductions, or even
refuse to implement them, in light of countervailing state interests.
Although such steps might provoke EPA to withhold federal environmental grant money, California is free to run the risk.” Pronsolino v. Marcus,
91 F. Supp. 2d 1337, 1355 (N.D. Cal. 2000), aff’d, 291 F.3d 1123 (9th Cir.
2002).

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to California state environmental regulations. California, not
EPA, enacts and enforces regulations related to nonpoint
sources. Thus, any decrease in property value related to the
Section 303(d) listing results from the possibility of future
state, not past federal, action.
Therefore, as I find that neither of Barnum’s theories of
harm established the requisite causal connection to show that
the alleged injury is “fairly traceable” to the conduct of EPA,
I would affirm the judgment of the district court on this
ground.
II.C

Redressability

I also consider redressability, the third prong of the standing analysis. Determining redressability “requires an analysis
of whether the court has the power to right or to prevent the
claimed injury.” Gonzalez v. Gorusch, 688 F.2d 1263, 1267
(9th Cir. 1982). Again, the majority opinion analyzes Barnum’s second theory of harm—that the inclusion of Redwood
Creek on the Section 303(d) listing will directly cause a
decrease in property value—and concludes that this prong of
the standing test is met. I disagree with the majority on this
inquiry as well.
i.

Section 303(d) Listing as Trigger for California
Forestry Regulations

Barnum does not show a likelihood of redressability.6 The
mere fact that Section 898 refers to a Section 303(d) listing
in one of its subsections does not itself show that the removal
6

While EPA does not challenge the redressability requirement with
respect to the Section 898 injury, this court may affirm the district court
on any ground supported by the record. Levine v. Vilsack, 587 F.3d 986,
991 (9th Cir. 2009). As the party seeking federal jurisdiction, Barnum
bears the burden of showing that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 540
U.S. at 561.

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of Redwood Creek from the 303(d) list would likely redress
Barnum’s claimed injury.
Barnum incorrectly claims that because the Section 303(d)
listing triggers the application of Section 898 to Redwood
Creek, EPA’s inclusion of Redwood Creek on the list is the
“but for” cause of its injury. As described earlier, the CWA
leaves the implementation of clean water regulations to the
states’ discretion. California has implemented a comprehensive system of regulations for timber harvesters, which “comprehensively regulate [Barnum’s] conduct irrespective of
Redwood Creek’s Section 303(d) listing.” Thus, though one
state regulation is tied to the Section 303(d) listing, the California regulations in total would impose costs upon Barnum
even if Redwood Creek is removed from the Section 303(d)
list. Moreover, even if Redwood Creek is removed from the
Section 303(d) list, Section 898 itself might cause California
to require Barnum to consider measures to improve the water
in the Redwood Creek watershed. See CAL. CODE REGS. tit. 14
§ 898.
Accordingly, I believe that Barnum fails to show that its
alleged injury would be redressable because California regulations would continue to impose costs potentially affecting
property values near Redwood Creek.
ii.

Section 303(d) Listing Directly Causing a Decrease in
Property Value

The majority opinion’s analysis of standing’s third element
concludes that Barnum’s alleged injury—a decrease in property value—could be redressed by a ruling favorable to Barnum. However, for many of the same reasons that Barnum’s
argument fails to satisfy standing’s second prong, I find that
Barnum fails to establish that its alleged injury could be
redressed by a favorable ruling.
California continues to control the implementation of the
land management practices in that state, and an order against

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EPA would not redress Barnum’s alleged injury. Indeed, California has not yet developed any specific TMDL that impacts
Barnum. And, even if they are developed, California—not
EPA—will decide how and if it will implement them. Pronsolino, 291 F.3d at 1140. As the district court noted, “at root,
the injuries plaintiff alleges arise from California’s forestry
regulations, and not [from] any action of the EPA.” See San
Diego County, 98 F.3d at 1130; see also Levine v. Vilsack,
587 F.3d 986, 995 (9th Cir. 2009) (holding alleged injury not
redressable where it depended upon the conduct of a third
party); Arakaki v. Lingle, 477 F.3d 1048, 1064 (9th Cir. 2007)
(holding that an injury is not redressable where the potential
benefit of suit is speculative); Boating Industry Ass’n v. Marshall, 601 F.2d 1376, 1380 (9th Cir. 1979) (“[I]f the injury
stems not from the government action disputed, but from an
independent source, a federal court cannot provide the plaintiff redress by directing the government to alter its action.”).
Accordingly, as I find that neither of Barnum’s theories of
harm establish that the injury alleged can be redressed by the
relief requested, I would also affirm the judgment of the district court on this ground.
III.

CONCLUSION

Because I would hold that Barnum does not possess requisite standing to meet the requirements of Article III, I would
affirm the district court’s dismissal and respectfully dissent
from the majority opinion.