FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 1 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAVE THE BULL TROUT; FRIENDS OF No. 21-35480

THE WILD SWAN; ALLIANCE FOR THE

WILD ROCKIES, D.C. No. 9:19-cv-00184-KLD

Plaintiffs-Appellants,

ORDER AND

v. AMENDED OPINION

MARTHA WILLIAMS, in her official capacity as Principal Deputy Director of the U.S. Fish and Wildlife Service; DEB HAALAND, in her official capacity as Secretary of the Department of Interior,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Kathleen Louise DeSoto, Magistrate Judge, Presiding

Argued and Submitted August 31, 2022 Seattle, Washington

Before: HAWKINS, McKEOWN, and SANCHEZ, Circuit Judges.

Order; Opinion by Judge Hawkins

SUMMARY *

Standing / Claim Preclusion

The panel filed (1) an order amending the opinion filed on September 28, 2022; and (2) an amended opinion affirming the district court’s judgment in favor of the U.S. Fish and Wildlife Service based on claim preclusion in an action brought by plaintiff environmental groups, challenging the Service’s 2015 Bull Trout Recovery Plan (the “Plan”) under the citizen-suit provision of the Endangered Species Act (“ESA”).

After the Oregon district court dismissed their initial complaint alleging claims concerning the Plan, two of the three plaintiffs in this action (Friends of the Wild Swan and Alliance for the Wild Rockies) elected not to amend to fix the deficiencies identified in the court’s order. Instead, plaintiffs appealed, and after losing on appeal, they sought to amend their complaint. The district court denied their motion to amend and found no grounds to reopen the judgment. Rather than appealing that determination, plaintiffs initiated a new action in the District of Montana raising a challenge to the legality of the Plan. The Montana district court declined to dismiss on the basis of claim preclusion, but granted summary judgment in favor of the Service on the merits of plaintiffs’ challenges.

The panel held that Friends of the Wild Swan and Alliance for the Wild Rockies had standing to challenge the Plan. Plaintiffs asserted a procedural injury. Their member declarations established ongoing aesthetic, recreational, and conservation interests in bull trout. The procedures outlined in Section 1533(f) of the ESA served to protect these interests by requiring the implementation of a bull trout recovery plan. Because plaintiffs established a procedural injury, they had standing as long as there was some possibility that the requested relief—revision of the Plan—would redress their alleged harms. The panel held that this benchmark was clearly met.

Claim preclusion is a doctrine that bars a party in successive litigation from pursuing claims that were raised or could have been raised in a prior action. As a threshold matter, the Service was not obligated to file a cross-appeal to raise the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. issue. Here, the Service offered claim preclusion as an alternate basis for affirming the district court’s judgment. The panel held that because the Service raised claim preclusion before the district court and in its briefing on appeal, the issue was properly before the court.

The panel next addressed claim identity and privity. First, the claims at issue are the same where plaintiffs challenge the legality of the Plan under Section 1533(f) of the ESA just as they did in the Oregon litigation. The plaintiffs’ additional claims rest on theories that they indisputably could have included in an amended complaint in Oregon. Second, plaintiffs have never disputed that Save the Bull is in privity with Friends of the Wild Swan and Alliance for the Wild Rockies, which were both parties in the Oregon action.

Finally, the panel held that plaintiffs’ challenge to the Plan was precluded because the Oregon litigation was a final judgment on the merits of their claims. A second adjudication is precisely what plaintiffs attempted here. That the Oregon district court applied the more stringent standard for relief from judgment in denying plaintiffs’ post-appeal motion for leave to amend did not alter the panel’s conclusion. The panel noted that contrary to plaintiffs’ argument, the Oregon district court’s dismissal of the original complaint reached the merits of those claims. Dismissal for failure to state a claim is a judgment on the merits for purposes of claim preclusion. The judgment on the merits became final and preclusive when plaintiffs abandoned their opportunity to amend.

Because the panel affirmed on the basis of claim preclusion, the panel did not pass judgment on the merits of plaintiffs’ claims or the district court’s assessment of them.

COUNSEL

Rebecca K. Smith (argued), Public Interest Defense Center, Missoula, Montana; Timothy M. Bechtold, Bechtold Law Firm PLLC, Missoula, Montana; for Plaintiffs- Appellants. Dina B. Mishra (argued), Kevin McArdle, Anthony D. Ortiz, and Robert P. Stockman, Attorneys; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Frank S. Wilson, Linus Y. Chen, and Kara M. Borden, Attorneys, U.S. Department of the Interior, Washington, D.C.; for Defendants-Appellees. Elizabeth B. Forsyth, Earthjustice, Seattle, Washington; Timothy J. Preso, Earthjustice, Bozeman, Montana; for Amici Curiae Center for Biological Diversity, Defenders of Wildlife, and Sierra Club.

ORDER

The opinion in the above-captioned matter filed on September 28, 2022, and

published at 49 F.4th 1292, is amended as follows:

At slip opinion page 13 lines 10–20, replace < Second, Save the Bull Trout is

in privity with Friends of the Wild Swan and Alliance for the Wild Rockies, which

were both parties in the Oregon action. Plaintiffs have never disputed that the three

organizations share the required common interest in wildlife and habitat

conservation. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency,

322 F.3d 1064, 1081 (9th Cir. 2003) (“[P]rivity may exist if ‘there is substantial

identity between parties, that is, when there is sufficient commonality of interest.’”

(quoting In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983))).> with

have never disputed that Save the Bull Trout is in privity with Friends of the Wild

Swan and Alliance for the Wild Rockies, which were both parties in the Oregon

action. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d

1064, 1081–82 (9th Cir. 2003) (detailing the requirements of privity between

parties).> HAWKINS, Circuit Judge:

Plaintiffs Save the Bull Trout, Friends of the Wild Swan, and Alliance for the

Wild Rockies challenge the United States Fish and Wildlife Service’s (“Service”)

2015 Bull Trout Recovery Plan under the citizen-suit provision of the Endangered

Species Act (“ESA”). It is not Plaintiffs’ first time bringing such a challenge.1 After

the Oregon district court dismissed their initial complaint alleging claims concerning

the Plan, Plaintiffs elected not to amend to fix the deficiencies identified in the

court’s order. Instead, Plaintiffs appealed, and only after losing on appeal did they

pursue amending their complaint. The Oregon district court denied their motion to

amend, finding no grounds for reopening the judgment. Rather than appealing that

determination, Plaintiffs initiated a new action in the District of Montana, pressing

the same fundamental challenge to the legality of the Bull Trout Recovery Plan.

We conclude that Plaintiffs’ claims are precluded and accordingly affirm the

Montana district court’s judgment in favor of the Service.

BACKGROUND

The ESA is “a comprehensive scheme with the ‘broad purpose’ of protecting

endangered and threatened species.” Ctr. for Biological Diversity v. U.S. Bureau of

Land Mgmt., 698 F.3d 1101, 1106 (9th Cir. 2012) (quoting Babbitt v. Sweet Home

1 As explained below, while Save the Bull Trout was not part of the Oregon litigation, Plaintiffs have never disputed that it is in privity with Friends of the Wild Swan and Alliance for the Wild Rockies. Chapter of Cmtys. for a Great Or., 515 U.S. 687, 698 (1995)). The ESA’s citizen-

suit provision empowers “any person” to “commence a civil suit on his own behalf”

against “the Secretary where there is alleged a failure of the Secretary to perform

any act or duty under section 1533 . . . which is not discretionary with the Secretary.”

16 U.S.C. § 1540(g)(1)(C).

The Act requires the Service to develop a recovery plan “unless [the

Secretary] finds that such a plan will not promote the conservation of the species.”

Id. § 1533(f)(1). It further instructs that in a recovery plan, the Service “shall, to the

maximum extent practicable,” incorporate the following:

(i) a description of such site-specific management actions as may be necessary to achieve the plan’s goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan’s goal and to achieve intermediate steps toward that goal.

Id. §§ 1533(f)(1)(B)(i)–(iii). When a species has recovered such that it is no longer

threatened or endangered, the Secretary has authority to delist that species by

publishing notice of a proposed regulation that concludes delisting is appropriate in

light of the same five factors considered for listing. Id. § 1533(c)(2)(B); see id.

§ 1533(a)(1).

2 21-35480 Bull trout (Salvelinus confluentus) are native to waters of western North

America. All populations of bull trout in the coterminous United States have been

listed as threatened since November 1999. After several draft recovery plans and a

suit challenging the Service’s failure to finalize a plan, the Service released the Bull

Trout Recovery Plan in 2015. Briefly stated, the Plan’s recovery strategy focuses

on “effectively manag[ing]” primary threats across designated core areas in six

recovery units, which are bull trout population units across different geographical

areas.

Two of the three Plaintiffs here, Friends of the Wild Swan and Alliance for

the Wild Rockies (collectively, “Friends”), previously brought suit in the District of

Oregon, also challenging the 2015 Bull Trout Recovery Plan. The Oregon district

court determined that Friends failed to state a claim for violation of a

nondiscretionary duty and noted that “[t]he consequence of this particular type of

failure to state a claim is that this Court lacks jurisdiction over the claims under the

citizen-suit provision.” Friends of the Wild Swan, Inc. v. Thorson, 260 F. Supp. 3d

1338, 1343 (D. Or. 2017). Accordingly, the court dismissed the ESA claims for lack

of jurisdiction but granted Friends leave to amend. Id. at 1345. Friends declined to

amend, and the Oregon district court entered judgment.

Friends then appealed the Oregon dismissal to this Court, and we affirmed.

Friends of the Wild Swan, Inc. v. Dir. of United States Fish & Wildlife Serv., 745 F.

3 21-35480 App’x 718 (9th Cir. 2018). On appeal, Friends argued for the first time that the

Service failed to perform a nondiscretionary duty to account for the five statutory

delisting factors in the Plan’s recovery criteria (“Additional Claims”). Id. at 720.

We refused to address these Additional Claims, noting that Friends had declined the

opportunity to amend their complaint in the district court and instead chose to appeal.

Id.

Friends then returned to the Oregon district court and filed a motion under

Federal Rules of Civil Procedure 60(b) and 15, seeking to amend their complaint to

assert the Additional Claims. The magistrate judge found that Plaintiffs could not

meet the Rule 60(b) standard to set aside the judgment and accordingly

recommended denial of their motion. However, the magistrate judge suggested that

a denial “[would] not effectively dismiss [Friends’] claims with prejudice” and that

Friends could “replead their first eight claims to survive a motion to dismiss, and

then be heard on the merits.” The district court adopted the magistrate judge’s

findings and recommendation “in full” but declined Friends’ request to affirm the

magistrate judge’s comments about the effect of the decision on a future suit. The

court found that the magistrate judge “made no predetermination of [Friends’] ability

to be heard on the merits” of a new complaint.

Friends declined to appeal the denial of their motion to amend. Instead, they

added Save the Bull Trout as a plaintiff and initiated a new action, this time in the

4 21-35480 District of Montana, again challenging the Service’s compliance with the ESA in

creating the 2015 Bull Trout Recovery Plan. Although the Montana district court

denied the Service’s motion to dismiss on the basis of claim preclusion, finding that

the Oregon litigation was not a “final judgment on the merits,” the court later granted

summary judgment in favor of the Service on the merits of Plaintiffs’ challenges.

The court found that the Service met its obligation to include “objective, measurable

criteria” in the Plan and rejected Plaintiffs’ statutory interpretation arguments.

Plaintiffs timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We apply a de novo standard

of review to standing, McGee v. S-L Snacks Nat’l, 982 F.3d 700, 705 (9th Cir. 2020),

along with claim preclusion, Media Rts. Techs., Inc. v. Microsoft Corp., 922 F.3d

1014, 1020 (9th Cir. 2019).

DISCUSSION

We first address the Service’s challenge to Plaintiffs’ standing to sue before

explaining why Plaintiffs’ claims are precluded.

I. STANDING

5 21-35480 Friends of the Wild Swan and Alliance for the Wild Rockies have standing

to challenge the 2015 Bull Trout Recovery Plan.2 An organization has standing to

sue on behalf of its members where “its members would otherwise have standing

to sue in their own right, the interests at stake are germane to the organization’s

purpose, and neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Only the first

element is disputed. To meet Article III’s standing requirements, 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.

Id. at 180–81; see Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

Plaintiffs here assert a procedural injury, which requires them to show “that

the procedures in question are designed to protect some threatened concrete interest

of [theirs] that is the ultimate basis of [their] standing.” Salmon Spawning &

2 While Save the Bull Trout did not submit standing declarations, as Friends did, “in an injunctive case this court need not address standing of each plaintiff if it concludes that one plaintiff has standing.” See Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (quoting Nat’l Ass’n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009)).

6 21-35480 Recovery All. v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (quoting Citizens

for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003)). After

a procedural injury has been established, the requirements of causation and

redressability are “relaxed.” Id. at 1229. Plaintiffs have standing if “there is some

possibility that the requested relief will prompt the injury-causing party to

reconsider” its actions. Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007).

Friends of the Wild Swan and Alliance for the Wild Rockies have standing.

Their member declarations establish ongoing aesthetic, recreational, and

conservation interests in bull trout. See Lujan, 504 U.S. at 562–63 (“[T]he desire to

use or observe an animal species, even for purely esthetic purposes, is undeniably a

cognizable interest for purpose of standing.”). The procedures outlined in Section

1533(f) of the ESA serve to protect these interests by requiring the creation and

implementation of a bull trout recovery plan, which the Service describes as “one of

the most important tools to ensure sound scientific and logistical decision-making

throughout the recovery process.”

Because Plaintiffs have established a procedural injury, they have standing as

long as there is “some possibility” that the requested relief—revision of the Bull

Trout Recovery Plan—will redress their alleged harms. See Massachusetts, 549

U.S. at 518. This benchmark is clearly met. The Service calls recovery plans “a

road map for species recovery,” laying out “where we need to go and how best to

7 21-35480 get there.” While recovery plans ultimately do not bind the Service, see

Conservation Cong. v. Finley, 774 F.3d 611, 614 (9th Cir. 2014), Plaintiffs need

only show that a new plan “may influence” the Service’s actions with respect to bull

trout conservation, see Salmon Spawning, 545 F.3d at 1226–27 (noting that

redressability of a procedural injury can often be established “with little difficulty”).

Plaintiffs have met this mark.

II. CLAIM PRECLUSION

Claim preclusion is a doctrine that “bars a party in successive litigation from

pursuing claims that ‘were raised or could have been raised in a prior action.’”

Media Rts., 922 F.3d at 1020 (quoting Owens v. Kaiser Found. Health Plan, Inc.,

244 F.3d 708, 713 (9th Cir. 2001)) (formatting omitted). It serves to “protect against

‘the expense and vexation attending multiple lawsuits, conserve judicial resources,

and foster reliance on judicial action by minimizing the possibility of inconsistent

decisions.’” Id. (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)) (formatting

omitted). Claim preclusion applies where “the earlier suit (1) involved the same

‘claim’ or cause of action as the later suit, (2) reached a final judgment on the merits,

and (3) involved identical parties or privies.” Mpoyo v. Litton Electro-Optical Sys.,

430 F.3d 985, 987 (9th Cir. 2005) (quoting Sidhu v. Flecto Co., 279 F.3d 896, 900

(9th Cir. 2002)) (formatting omitted). The party seeking to invoke claim preclusion

bears the burden of establishing these elements. Media Rts., 922 F.3d at 1020–21.

8 21-35480 As a threshold matter, the Service was not obligated to file a cross-appeal to

raise this issue before us. A cross-appeal is necessary only where a party “attack[s]

the decree” of the lower court either to enlarge its own rights or lessen the rights of

an adversary. Jennings v. Stephens, 574 U.S. 271, 276 (2015) (quoting United States

v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)). Here, the Service offers claim

preclusion as an alternate basis for affirming the district court’s judgment. See

McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir. 2004) (noting the

court “may affirm on any ground supported by the record”); see also Jennings, 574

U.S. at 276 (noting argument without a cross-appeal may permissibly “involve an

attack upon the reasoning of the lower court” (quoting Am. Ry. Express, 265 U.S. at

435)). Because the Service raised claim preclusion before the district court and in

its briefing on appeal, this issue is properly before us.

A. Claim Identity and Privity Are Met

Before turning to the only disputed element—whether there was a final

judgment on the merits in Oregon—we briefly address claim identity and privity.3

Both elements are met. First, the claims at issue are the same: Plaintiffs challenge

the legality of the 2015 Bull Trout Recovery Plan under Section 1533(f) of the ESA

just as they did in the Oregon litigation. The Plaintiffs’ Additional Claims rest on

3 Plaintiffs failed to contest these elements before the district court or in their briefing before us.

9 21-35480 theories that they indisputably could have included in an amended complaint in

Oregon. See Mpoyo, 430 F.3d at 988 (“Different theories supporting the same claim

for relief must be brought in the initial action.” (quoting W. Sys., Inc. v. Ulloa, 958

F.2d 864, 871 (9th Cir. 1992))). Plaintiffs have never disputed that Save the Bull

Trout is in privity with Friends of the Wild Swan and Alliance for the Wild Rockies,

which were both parties in the Oregon action. See Tahoe-Sierra Pres. Council, Inc.

v. Tahoe Reg’l Plan. Agency, 322 F.3d 1064, 1081–82 (9th Cir. 2003) (detailing the

requirements of privity between parties).

With claim identity and privity met, we turn to the only disputed element:

whether there was a final judgment on the merits in the Plaintiffs’ suit in Oregon.

B. There Was a Final Judgment on the Merits in Oregon

Plaintiffs’ challenge to the 2015 Bull Trout Recovery Plan is precluded

because the Oregon litigation was a final judgment on the merits of their claims. We

have applied claim preclusion to bar the subsequent filing of claims that were subject

to the denial of leave to amend even where the denial was based on dilatoriness

rather than the merits. Mpoyo, 430 F.3d at 989. A contrary holding, we reasoned,

would “create incentive for plaintiffs to hold back claims and have a second

adjudication.” Id. A second adjudication is precisely what Plaintiffs attempt here.

Initially declining the opportunity to amend their Oregon complaint to add the

Additional Claims, they instead decided to pursue an appeal. Only after losing on

10 21-35480 appeal did they move to amend their complaint, but the district court denied that

motion. It is immaterial that the court’s decision was unrelated to the merits of the

Additional Claims. See Mpoyo, 430 F.3d at 989.

That the Oregon district court applied the more stringent standard for relief

from judgment in denying Plaintiffs’ post-appeal motion for leave to amend does

not alter our conclusion. See Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144,

1173 (9th Cir. 2017) (contrasting the “freely given” leave to amend with the

“sparing[]” reopening of judgment (quoting United States v. Alpine Land &

Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993)) (formatting omitted)). Friends’

own strategic choices created that result. When they appealed the district court’s

original dismissal of their complaint rather than amending, Friends took on the risk

that we would affirm and leave the judgment against them intact.4 Now they must

live with the consequences of their choice. See Airframe Sys., Inc. v. Raytheon Co.,

601 F.3d 9, 11 (1st Cir. 2010) (“[C]laim preclusion doctrine requires [a party] to live

4 Plaintiffs make much of the Oregon magistrate judge’s indication that despite the denial of leave to amend, Friends would be able to replead their ESA claims and be heard on the merits. This comment does not alter our conclusion for two reasons. First, the district court refused to reaffirm the statement as Friends requested, instead indicating that the magistrate judge “made no predetermination” of their ability to proceed in a new suit. This correction put Friends on notice that they should not rely on the magistrate judge’s assessment. Second, as the Supreme Court has noted, “[A] court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment.” See Medellin v. Texas, 552 U.S. 491, 513 n.9 (2008) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 805 (1985)). Such was the case here.

11 21-35480 with [its strategic] choices.”). Appeal was the “only recourse” available to Friends

after the district court denied their motion to amend. See Johnson v. SCA Disposal

Servs. of New England, Inc., 931 F.2d 970, 976 (1st Cir. 1991). Yet they declined

to appeal, instead initiating a new action.

Finally, we note that contrary to Plaintiffs’ argument, the Oregon district

court’s dismissal of their original complaint reached the merits of those claims. The

ESA’s citizen-suit provision only confers jurisdiction over challenges alleging the

Service’s failure to perform a nondiscretionary duty. See 16 U.S.C. § 1540(g)(1)(C).

As a result, federal courts must assess the merits of an ESA claim in order to

determine their jurisdiction over it. See Coos Cnty. Bd. of Cnty. Comm’rs v.

Kempthorne, 531 F.3d 792, 802–03 (9th Cir. 2008) (noting that in the ESA context,

the Rule 12(b)(6) analysis of whether a plaintiff has stated a claim is concurrent with

the Rule 12(b)(1) analysis of subject matter jurisdiction). In other words, the Oregon

district court had to analyze whether Friends plausibly alleged that the Service failed

to comply with a nondiscretionary duty in order to determine whether there was

jurisdiction. The court’s order clarifies the relationship between its merits

determination and its jurisdictional determination: the court noted that “[t]he

consequence of this particular type of failure to state a claim is that this Court lacks

jurisdiction over the claims under the citizen-suit provision.” Friends of the Wild

Swan, 260 F. Supp. 3d at 1343. Dismissal for failure to state a claim is a judgment

12 21-35480 on the merits for purposes of claim preclusion. Stewart v. U.S. Bancorp, 297 F.3d

953, 957 (9th Cir. 2002) (citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,

399 n.3 (1981)). The judgment on the merits became final and preclusive when

Friends abandoned their opportunity to amend. See Muhammad v. Oliver, 547 F.3d

874, 876 (7th Cir. 2008) (“[W]hen a suit is abandoned after an adverse ruling against

the plaintiff, the judgment ending the suit, whether or not it is with prejudice, will

generally bar bringing a new suit that arises from the same facts as the old one.”).

CONCLUSION

Plaintiffs are not entitled to a do-over. They must bear the consequences of

their strategic choices in the Oregon litigation. Because we affirm on the basis of

claim preclusion, we pass no judgment on the merits of Plaintiffs’ claims or the

district court’s assessment of them.

AFFIRMED.

13 21-35480