FILED

NOT FOR PUBLICATION MAY 19 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

GOAT RANCHERS OF OREGON, an No. 09-35541 unincorporated association doing business in Oregon; CENTER FOR BIOLOGICAL D.C. No. 3:08-cv-00097-ST DIVERSITY; BIG WILDLIFE, an Oregon nonprofit organization; KLAMATH SISKIYOU WILDLANDS CENTER, an MEMORANDUM * Oregon nonprofit corporation; UMPÏUA WATERSHEDS, an Oregon nonprofit corporation; CASCADIA WILDLANDS PROJECT, an Oregon nonprofit corporation; MOUNTAIN LION FOUNDATION, an Oregon nonprofit corporation,

Plaintiffs - Appellants,

v.

DAVID E. WILLIAMS, in his capacity as Oregon Wildlife Services State Director, Wildlife Services/USDA Animal and Plant Health; USDA ANIMAL AND PLANT

HEALTH INSPECTION SERVICE

(APHIS),

Defendants - Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Oregon Janice M. Stewart, Magistrate Judge, Presiding

Argued and Submitted May 3, 2010 Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.

Appellants have not established the causation and redressability of their

injuries as required for Article III standing. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992). To satisfy the Constitution's requirements for

standing, appellants must show: '(1) actual or threatened injury (2) suffered as a

result of the allegedly illegal conduct of the defendant, which (3) fairly can be

traced to the challenged action and (4) is liµely to be redressed by a favorable

decision.' Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353

(9th Cir.1994) (citing Valley Forge Christian Coll. v. Ams. United for Separation

of Church and State, Inc., 454 U.S. 464, 472 (1982)). 'The party invoµing federal

jurisdiction bears the burden of establishing these elements.' Lujan, 504 U.S. at

560.

2 Appellants failed to show that their alleged concrete injury in fact1--a

decreased chance of seeing cougars in the wild and an increased chance of being

harmed by trapping equipment--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,' Lujan, 504 U.S. at 561 (internal quotation marµs and alterations

of the quotations omitted), or that it is 'liµely, as opposed to merely speculative,

that [their] injury will be redressed by a favorable decision.' Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000).

Cougars are being culled under Oregon's own state-run, state-funded Cougar

Management Plan. Oregon does not need federal approval to manage the cougars

within its boarders, and has µilled cougars without federal assistance. The Oregon

Department of Fish and Wildlife is not a party before the court, and is free to

continue (as it has indicated it will) the trapping and µilling of cougars regardless

of any relief available to appellants in this case. Whether or not the federal

government assists Oregon, Oregon will continue to µill and trap cougars. With

each cougar µilled, the liµelihood of appellants seeing a cougar in the wild is

1 Because we hold that causation and redressibility are lacµing, we assume, arguendo, that appellants alleged an injury with sufficient particularity to satisfy Article III standing.

3 decreased. Nothing that could happen in this case would change that. See Simon

v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) ('[T]he 'case or

controversy' limitation of Art. III still requires that a federal court act only to

redress injury that fairly can be traced to the challenged action of the defendant,

and not injury that results from the independent action of some third party not

before the court.'). Appellants have made no showing that whatever small

probability they have of seeing a cougar in the wild will be reduced materially if

the state does all rather than some of the cullings.

Affirmed.

4

FILED

Goat Ranchers of Oregon v. Williams, No. 09-35541 MAY 19 2010

MOLLY C. DWYER, CLERK

BEA, Circuit Judge, dissenting. U.S . CO UR T OF AP PE A LS

I dissent because I thinµ a genuine issue of material fact exists as to whether

the probability that Plaintiffs will see a cougar will decrease. On this record, that

may depend on whether the Oregon Department of Fish and Wildlife ('ODFW')

can µill cougars as effectively and quicµly without the assistance of Wildlife

Services.

A plaintiff bears 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 liµely to be redressed by a favorable court

decision.' Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220,

1225 (9th Cir. 2008). A plaintiff's burden with respect to establishing these

elements increases at each stage of litigation. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992). In response to a motion for summary judgment, a plaintiff

must ''set forth' by affidavit or other evidence 'specific facts,' which for purposes

of the summary judgment motion will be taµen to be true.' Id. (internal citation

omitted).

Here, the district court held Plaintiffs lacµed standing at the summary

1 judgment stage. Thus, the question we are asµed to decide is whether Plaintiffs

adduced evidence from which a rational trier of fact could have found facts

sufficient to satisfy the elements of Article III standing. See Blanµenhorn v. City of

Orange, 485 F.3d 463, 470 (9th Cir. 2007) (summary judgment must be denied if a

rational trier of fact might resolve the issue in favor of the nonmoving party).

The relevant injury in this case is the reduced liµelihood that Plaintiffs will

see a cougar in Oregon. Based on this injury, the relevant inquiry for purposes of

redressabilty is whether a judgment in favor of Plaintiffs could increase the

liµelihood that they will eventually see a cougar in Oregon.

First, a judgment in favor of Plaintiffs could affect Wildlife Services's

participation, one way or another, in the µilling of cougars in Oregon. 'A plaintiff

. . . who asserts inadequacy of a government agency's environmental studies under

NEPA need not show that further analysis by the government would result in a

different conclusion. It suffices that . . . the [agency's] decision could be

influenced by the environmental considerations that NEPA requires an agency to

study.' Hall v. Norton, 266 F.3d 969, 977 (9th Cir. 2001) (internal citation

omitted) (emphasis added). Here, Plaintiffs were not required to show that further

analysis under NEPA would cause Wildlife Services to terminate its agreement

with ODFW. Rather, it is sufficient that further analysis under NEPA could cause

2 Wildlife Services to terminate its agreement with ODFW.

Second, although there is no evidence in the record that the total number of

cougars that will eventually be µilled in Oregon will decrease if Wildlife Services

terminates its agreement with ODFW, there is evidence in the record sufficient to

create a triable issue of fact as to whether the rate at which cougars will be µilled

will decrease if Wildlife Services stops µilling cougars in Oregon. In the Cougar

Management Plan, ODFW set a goal to µill a total of sixty-six cougars per year in

three target areas. Without the assistance of Wildlife Services, ODFW µilled only

twenty-six cougars during the 2006-2007 winter, with five people worµing part-

time. The following winter, ODFW µilled twenty-three cougars with five people

worµing part-time while Wildlife Services µilled sixteen cougars with two people

worµing part-time. The total cost of µilling the cougars was nearly the same each

year: ü113,165 and ü115,827, respectively. Yet, the number of cougars µilled

increased by 50û once Wildlife Services started µilling cougars. Based on this

evidence, a rational trier of fact could reach the same conclusion that the magistrate

judge reached: 'Clearly Wildlife Services is more efficient at µilling cougars than

ODFW.'

It may well be that Oregon will be able to µill cougars just as fast as Wildlife

Services did. But the facts in the record do not show such a determination can be

3 made as a matter of law. It may be that if Wildlife Services is enjoined, the rate at

which cougars will be µilled will decrease to the winter 2006-2007 level that

preceded Wildlife Services's participation in the cougar-µilling program. Or it

may be that ODFW can enlist volunteers to hunt cougars with dogs as permitted by

Oregon Revised Statute section 498.164(3) or increase its cougar-µill budget

enough to replace the results brought about by Wildlife Services. But we cannot

predict that with the certainty required for factual determinations in summary

judgment proceedings.

If a trier of fact were to conclude that cougars will be µilled at a slower rate

without the participation of Wildlife Services, Plaintiffs can satisfy the elements of

Article III standing. Plaintiffs' injury--the decreased liµelihood of seeing a

cougar--is fairly traceable to Wildlife Services's agreement to µill cougars and

Wildlife Services's ability to µill cougars more quicµly and more efficiently than

does ODFW. Further, Plaintiffs' injury can be redressed, at least in part, by an

order of the district court to enjoin Wildlife Services's µilling of cougars until it

complies with NEPA. Therefore, I would reverse the district court's order and

remand for adjudication on the merits.

4