FILED
NOT FOR PUBLICATION
OCT 23 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDEARTH GUARDIANS and NEW No. 17-16677
MEXICO WILDERNESS ALLIANCE,
D.C. No. 4:13-cv-00392-DCB
Plaintiffs-Appellees,
v. MEMORANDUM*
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant-Appellant,
and
SAFARI CLUB INTERNATIONAL; et
al.,
Intervenor-Defendants.
WILDEARTH GUARDIANS and NEW No. 17-16678
MEXICO WILDERNESS ALLIANCE,
D.C. No. 4:13-cv-00392-DCB
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
JUSTICE,
Defendant,
NEW MEXICO CATTLE GROWERS’
ASSOCIATION; et al.,
Intervenor-Defendants,
and
SAFARI CLUB INTERNATIONAL,
Intervenor-Defendant-
Appellant.
WILDEARTH GUARDIANS and NEW No. 17-16679
MEXICO WILDERNESS ALLIANCE,
D.C. No. 4:13-cv-00392-DCB
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant,
SAFARI CLUB INTERNATIONAL,
Intervenor-Defendant,
and
NEW MEXICO CATTLE GROWERS’
2
ASSOCIATION; et al.,
Intervenor-Defendants-
Appellants.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted October 9, 2018
Seattle, Washington
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
The United States Department of Justice (“DOJ”) and Intervenors Safari
Club International and New Mexico Cattle Growers’ Association appeal the district
court’s order granting summary judgment to WildEarth Guardians and New
Mexico Wilderness Alliance (collectively “WildEarth”). We have jurisdiction
under 28 U.S.C. § 1291, and we vacate and remand to the district court with
instructions to dismiss for lack of standing.
WildEarth brought claims under the Administrative Procedure Act,
challenging the DOJ’s McKittrick policy as arbitrary and inconsistent with the
Endangered Species Act (“ESA”). Under the McKittrick policy, prosecutors are
directed to request jury instructions with a heightened mens rea requirement in
prosecutions under the ESA, even though this court has already held that a
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heightened mens rea requirement is not required under the statute. United States v.
McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998). According to WildEarth, this
policy decreases the deterrent effect of the ESA’s prohibition against taking
protected Mexican grey wolves, thereby leading to an increased number of wolf
killings.
We find that WildEarth lacks standing to bring this challenge. To establish
standing, WildEarth must show (1) a concrete and particularized injury that (2) is
traceable to the challenged conduct and (3) would likely be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
WildEarth asserts that it and its members are injured by the increased number of
Mexican wolf killings and the McKittrick policy’s adverse impact on Mexican wolf
conservation. The DOJ does not dispute that this constitutes an injury. But even
assuming that WildEarth has suffered a cognizable injury, it has failed to show
both that the injury was fairly traceable to the McKittrick policy and that its
requested relief would actually redress that injury by decreasing the number of
Mexican wolves that are killed.
WildEarth asserts that without the McKittrick policy, there will be additional
prosecutions of unlawful wolf takings, which will then deter members of the public
from purposefully or accidentally killing wolves. Yet as WildEarth’s counsel
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acknowledged during argument, WildEarth is not aware of any specific instance
where the DOJ has declined to prosecute a wolf killing because of the McKittrick
policy. The court therefore cannot conclude that eliminating the policy would
trigger additional prosecutions, a greater deterrent effect, and fewer Mexican wolf
killings.
Moreover, WildEarth’s conclusion necessarily rests upon several layers of
speculation. For example, to find that fewer wolves would be killed in the absence
of the McKittrick policy, the court would, at a minimum, need to speculate about:
how the U.S. Fish & Wildlife Service would allocate its resources and the extent to
which it would investigate and refer wolf shootings to the DOJ; how the DOJ
would prioritize prosecutions of unlawful wolf takings given its own policies and
limited resources; whether individual prosecutors would choose to indict and
prosecute particular cases of wolf killings; whether the circumstances surrounding
any wolf killing would otherwise preclude prosecution (e.g., if the government is
unable to identify the shooter); and the extent to which members of the public
would be aware of the additional prosecutions (especially if there is only a modest
increase) and would change their behavior by shooting fewer wolves. In effect, on
the record before us WildEarth’s contention that eliminating the McKittrick policy
would decrease wolf killings requires speculation about how a series of
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independent entities would respond to the change. This is insufficient to support
standing under Article III. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 413-14
(2013) (no standing where the court would have to rely on “speculation” or
“guesswork as to how independent decisionmakers will exercise their judgment.”);
see also Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 42-43 (1976) (no
standing to challenge tax change because it is “speculative” whether a court-
ordered reinstatement of tax benefits for indigent services would cause hospitals to
resume providing services to the indigent).
We therefore vacate the district court’s order granting WildEarth summary
judgment, and remand to the district court with instructions to dismiss WildEarth’s
complaint for lack of standing.
The parties shall bear their own costs for this appeal.
VACATED AND REMANDED
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