Wildearth Guardians v. Hoover et al

Filing 35

ORDER denying 27 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Donald W. Molloy on 11/14/2016. (DLE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

WILDEARTH GUARDIANS,

CV 16–65–M–DWM

Plaintiff,
vs.

OPINION
and ORDER

CRAIG HOOVER; DANIEL ASHE;
UNITED STATES FISH AND
WILDLIFE SERVICE; SALLY
JEWELL; AND THE UNITED
STATES DEPARTMENT OF THE
INTERIOR,
Defendants.

Plaintiff WildEarth Guardians (“WildEarth”) seeks declaratory and
injunctive relief against Defendants Craig Hoover, Daniel Ashe, United States
Fish and Wildlife Service, Sally Jewell, and the United States Department of the
Interior (collectively “the Service”) on the grounds that they failed to comply with
environmental and regulatory procedures in the administration and implementation
of a federal export program that allows certain animal pelts and parts to be
exported from the United States pursuant to the Convention on International Trade
in Endangered Species (“CITES”). The Service argues that WildEarth lacks

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standing and seeks to dismiss the Amended Complaint, (Doc. 9).1 (Doc. 27.) The
Service’s motion is denied.
BACKGROUND
CITES is a multilateral treaty that aims to protect wildlife by regulating
trade in certain species that are vulnerable to, or adversely affected by, trade. 27
U.S.T. 1087 (March 3, 1973). The export of pelts and other parts of certain
furbearing animals, including bobcats, Canada lynx, gray wolves, brown bears,
and river otters, is regulated under Appendix II of the treaty. Id.; 50 C.F.R.
§ 23.91. A CITES export permit or certificate is therefore required for the
exportation of pelts or other parts of those furbearing animals. The Service has
promulgated regulations to implement CITES that prohibit the import or export of
any CITES-listed animals unless expressly authorized by valid documents or
specifically exempted from documentation requirements. See 50 C.F.R. pt. 23.
Pursuant to these regulations, anyone seeking to export pelts or parts of
furbearing species listed in Appendix II must acquire tags and permits either
directly from the Service’s Division of Management Authority or from a state or

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A motion to dismiss was initially filed on July 11, 2016. (See Doc. 5.) WildEarth
subsequently filed its Amended Complaint, (Doc. 9), however, and the Service filed the present
motion to address the amended pleading. On August 3, 2016, the Montana and National
Trappers Associations intervened, (Doc. 21), and join in the present motion, (Doc. 28).
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tribe approved to distribute tags and/or permits. In the second instance, interested
states and tribes can apply to the Division of Management Authority, and if
approved, the Service provides the tags and permits to the states and tribes for
distribution to trappers, hunters, or other individuals. In this process, a state or
tribe must provide sufficient information for the Service to determine that its
management program and harvest controls are appropriate to ensure that CITES
furbearers harvested within its jurisdiction are legally acquired and that export will
not be detrimental to the survival of the species in the wild. See 50 C.F.R.
§ 23.61; (Doc. 9 at ¶ 20.) If the state or tribe is approved for CITES export
authority, the Division of Management Authority supplies the state or tribe with
serially unique CITES export tags specific to the state or tribe. (Doc. 9 at ¶ 21.)
These states and tribes must, in turn, require that specimens of the species for
which they have export program approval are tagged with these serially unique,
non-reusable tags as evidence of legal acquisition. (Id.) Montana is one of the
states approved for distribution of export tags and permits for Appendix II species,
including bobcats and gray wolves. (Id. at ¶ 22.)
WildEarth alleges that the Service’s CITES export program for Appendix II
furbearers is a major federal action that significantly affects the human
environment and that, as such, the Service violated the National Environmental
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Policy Act (“NEPA”) when it failed to prepare an Environmental Assessment or
Environmental Impact Statement in conjunction with the program. The Service
insists that WildEarth lacks standing because while exporting furbearer pelts and
other parts requires a CITES tag and permit, the trapping and hunting of furbearers
is authorized and controlled by states, including Montana, under state law.
LEGAL STANDARD
A party may seek dismissal of an action for lack of subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). Under Article III of the United States
Constitution, a court has subject matter jurisdiction only if the party bringing the
action has standing. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115,
1122 (9th Cir. 2010). To have standing, “[t]he plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547 (2016) (citing Lujan,
504 U.S. 555, 560-61 (1992)). The plaintiff, as the party seeking to invoke the
court’s jurisdiction, bears the burden of establishing subject matter jurisdiction.
Lujan, 504 U.S. at 561. “Where, as here, a case is at the pleading stage, the
plaintiff must clearly allege facts demonstrating each element,” Spokeo, Inc., 136
S. Ct. at 1547 (quotation marks and alteration omitted), but courts “presume that
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general allegations embrace those specific facts that are necessary to support the
claim.” Lujan, 504 U.S. at 561 (internal quotation marks and alteration omitted).
ANALYSIS
WildEarth’s showing of injury in fact, the causal connection between its
alleged injury and the Service, and the redressability of its claim should it succeed
on the merits meets the requirements of Article III standing.
A.

Injury in Fact

The Service first argues that WildEarth fails to show injury in fact. “To
establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548
(quoting Lujan, 504 U.S. at 560). “[T]he desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a cognizable interest for
the purpose of standing.” Lujan, 504 U.S. at 562-63. But, “[f]or an injury to be
‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’”
Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). For an
injury to be “concrete,” “it must actually exist” in that it must be “real, and not
abstract.” Id. (internal quotation marks omitted). “[I]ntangible injuries can
nevertheless be concrete,” but a plaintiff cannot “allege a bare procedural
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violation[] divorced from any concrete harm.” Id. at 1549; see Summers v. Earth
Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a procedural right
without some concrete interest that is affected by the deprivation . . . is insufficient
to create Article III standing.”).
Here, WildEarth alleges its members “have, among other interests, aesthetic,
professional, recreational, personal, and spiritual interest in bobcats, wolves, and
other non-target animals.” (Doc. 9 at ¶ 6.) It also alleges that its members live
near and plan to visit areas that provide furbearer habitat, and
are affected by trapping and other capture methods in Montana and other
states that harm or reduce the numbers of bobcats, gray wolves, and
other non-target animals in these areas, and make it less likely that they
will: see these animals, see evidence of these animals; enjoy looking for
these animal and evidence of these animals; or experience habitat in
which these animals live.
(Id.) The Service argues that the alleged injury is not sufficient because the
Amended Complaint does not identify individual members of WildEarth with
concrete plans to view or experience furbearers in any area, much less Montana.
However, in addition to the allegations in the Amended Complaint, WildEarth has
filed declarations of three members who have a specific interest in the furbearing
species at issue. (See Decl. Bishop, Doc. 30-1 at ¶¶ 11-13 (indicating regular
recreation in areas around Bozeman and that he enjoys looking for and seeing

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signs of wildlife)); (Decl. Peck, Doc. 30-2 at ¶¶ 7-8 (indicating regular recreation
in Flathead/Glacier area and plans to do so in the future)); (Decl. Nokes, Doc. 30-3
at ¶¶ 8-11 (indicating regular recreation in the Missoula area).) These affidavits
aid in establishing injury in fact. See Seattle Audubon Soc’y v. Espy, 998 F.2d
699, 703 (9th Cir. 1993) (plaintiffs’ challenge regarding owls sufficient where
“supported by declarations from its members describing inter alia their proximity
to owl-inhabited forests, the frequency with which they visit these forests, and
their aesthetic and scientific interest in the owl”); Defenders of Wildlife v. Hall,
807 F. Supp. 2d 972, 981 (D. Mont. 2011) (considering affidavits filed after the
complaint in determining identified individuals alleged harm); see also Nat’l
Council of La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015) (“Where it is
relatively clear, rather than merely speculative, that one or more members have
been or will be adversely affected by a defendant’s action, and where the
defendant need not know the identity of a particular member to understand and
respond to an organization’s claim of injury, [there is] no purpose to be served by
requiring an organization to identify by name the member or members injured.”
The Amended Complaint and the declarations filed by WildEarth establish
that its members visit and enjoy furbearing species in Montana and trapping and/or
snaring of bobcats and wolves interferes with those interests. WildEarth has
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identified concrete harms flowing from its alleged procedural violation.
B.

Causation

“A showing of procedural injury lessens a plaintiff’s burden on the last two
prongs of the Article III standing inquiry, causation and redressibility.” Salmon
Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008)
(citing Lujan, 504 U.S. at 572 n.7). “To show causation, the plaintiff must
demonstrate a ‘causal connection between the injury and the conduct complained
of—the injury has to be 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.’” Id. at 1227 (quoting Lujan, 504 U.S. at 560-61).
The Service argues that WildEarth cannot show that the animal export
program caused the injuries alleged because it is the states, such as Montana, that
authorize the trapping and hunting of furbearers, not the export program
administered by the agency. WildEarth argues that its members’ harms are
causally connected to the Service’s administration of the CITES export program
“because [the program] creates and maintains incentives for individuals to pursue
[the killing of gray wolves and bobcats], and allows them to profit from the
exports of pelts and parts.” (Doc. 30 at 17.) WildEarth’s Amended Complaint
asserts that its members “have been and continue to be adversely affected by the
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Service’s actions and/or inactions as described in this pleading, because they have
resulted in and continue to result in death, harm, and injury to targeted bobcats and
gray wolves, and other animals that are not targeted.” (Doc. 9 at ¶ 6.) WildEarth
emphasizes, correctly, that bobcat and wolf pelts and parts cannot be exported
without the agency’s approval and that intervention by the trapping organizations
shows a financial interest in the regulation of such exports.
Moreover, pursuant to the governing regulations for CITES, the Service
must determine whether granting a permit to a particular entity would be
detrimental to the survival of the species. See 50 C.F.R. § 23.61. As a result, the
numbers and methods of trapping are not wholly outside the Service’s control.
See WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1157 (9th Cir.
2015) (“So long as [a] defendant is at least partially causing the alleged injury, a
plaintiff may sue that defendant, even if the defendant is just one of multiple
causes of the plaintiff’s injury.”); Barnum Timber Co. v. U.S. E.P.A., 633 F.3d
894, 898-99 (9th Cir. 2011) (finding standing where landowner challenging
California’s list of impaired waterbodies under the Clean Water Act sufficiently
plead causality related to the devaluation of land under the decision). WildEarth
has sufficiently established causation to meet the requirements of standing “at this
early stage of the proceeding.” Barnum Timber Co., 633 F.3d at 899.
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C.

Redressability

Determining redressability “requires an analysis of whether the court has the
power to right or to prevent the claimed injury.” Gonzales v. Gorsuch, 688 F.2d
1263, 1267 (9th Cir. 1982). “Plaintiffs alleging procedural injury can often
establish redressibility with little difficulty, because they need to show only that
the relief requested—that the agency follow the correct procedures—may
influence the agency’s ultimate decision of whether to take or refrain from taking a
certain action.” Spawning & Recovery Alliance, 545 F.3d at 1226-27. WildEarth
need only show “that [it] ha[s] a procedural right that, if exercised, could protect
their concrete interests.” Id. at 1226. It has done so here.
If WildEarth successfully shows that the Service’s determination that the
CITES export program for Appendix II species is categorically excluded from
NEPA review was arbitrary or capricious, this Court has the power under the
Administrative Procedure Act to grant the declaratory and injunctive relief
WildEarth requests. 5 U.S.C. § 706(2)(A). And, if the Service is required to
perform NEPA analysis in conjunction with its administration of the CITES
program, it will be required to consider the impact the program has on the species
and the environment, addressing WildEarth members’ harms. If WildEarth is
successful on the merits it is not “merely speculative . . . that the injury will be
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redressed.” Barnum Timber Co., 633 F.3d at 899.
CONCLUSION
Accordingly, IT IS ORDERED that the Service’s motion to dismiss (Doc.
27) is DENIED.
DATED this 14th day of November, 2016.

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