Idaho Conservation League v. Salmon Headwaters Conservation

FILED
NOT FOR PUBLICATION
AUG 25 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

IDAHO CONSERVATION LEAGUE, No. 20-35033

Plaintiff-Appellee, D.C. No. 1:18-cv-00044-BLW

v.
MEMORANDUM*
UNITED STATES FOREST SERVICE,

Defendant,

and

SALMON HEADWATERS
CONSERVATION ASSOCIATION LLC,

Intervenor-Defendant-
Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted May 3, 2021
Portland, Oregon

Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.
Dissent by Judge BEA

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 Salmon Headwaters Conservation Association (“SHWCA”), on behalf of its

members, claims entitlement to Ditch Bill Easements (“DBEs”) for diversions in

the Sawtooth Valley of Idaho. SHWCA members have filed DBE applications

with the United States Forest Service (“the Forest Service”). As of this appeal, the

applications remain pending.

The Idaho Conservation League (“ICL”) sued the Forest Service for failing

to initiate consultation under Section 7(a)(2) of the Endangered Species Act

(“ESA”), codified at 16 U.S.C. § 1536(a)(2), for the use of the diversions.

SHWCA moved to intervene in the action. The district court denied intervention

as of right at the liability stage after finding that the Forest Service adequately

represented SHWCA’s interests. The district court, however, allowed SHWCA to

permissively intervene in the remedies phase.

Following cross-motions for summary judgment, the district court held at

the liability stage that the Forest Service violated the ESA by failing to engage in

consultation over the diversions. Pursuant to a stipulated remedy between ICL and

the Forest Service, the Forest Service must begin the consultation process.

SHWCA appeals the denial of intervention and argues the Forest Service has

no authority to initiate Section 7 consultation because the issuance of a DBE is

non-discretionary. See Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1219

2
(9th Cir. 2015) (explaining that ESA consultation is not “triggered” when agency

action is non-discretionary). From this, SHWCA argues that it possesses a

divergent interest from the Forest Service and should have been allowed to

intervene as of right in the underlying suit.

1. SHWCA has standing to appeal the denial of intervention. A litigant

whose motion to intervene is denied will usually have standing to appeal that

denial, independent of whether it would have standing to appeal on the merits. See

W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, 643 F.3d 701, 705

(9th Cir. 2011) (“[O]ne must not conflate the issue in the underlying

litigation . . . with the controversy in this appeal over WCSPA’s motion to

intervene.”); 15A Charles Alan Wright, Arthur R. Miller, & Mary K. Kane,

Federal Practice and Procedure § 3902.1 (2d ed. April 2021 update) (“Persons

denied intervention in the trial court clearly have standing to appeal the denial of

intervention, but if intervention was properly denied have no greater right to appeal

the judgment entered between others than other nonparties.”).1

1
The dissent argues an unsuccessful intervenor only has standing to appeal
the denial of intervention if it has a concrete injury at stake. But SHWCA has
shown in its submissions to our court that it has a concrete injury here because the
consultation process itself creates uncertainty about the status of its members’
possessory rights to the diversions, which adversely affects their property values.
3
 For similar reasons, mootness does not preclude our review because

SHWCA has demonstrated that the judgment will cause its members a concrete

and particularized injury that is actual or imminent and that would likely be

redressed if they were permitted to appeal and prevailed on the merits on appeal.

See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 482 (9th Cir. 2011);

United States v. Sprint Commc’ns, 855 F.3d 985, 990 (9th Cir. 2017) (holding that

an appeal from denial of intervention as of right is not moot if reversing the district

court’s order could afford the putative intervenor “a possible avenue to some

remedy”). The consultation process, irrespective of its outcome, causes injury to

SHWCA members because their claimed DBE rights may not be subject to

consultation in the first place. As a result of the district court’s judgment at the

liability phase, SHWCA members are now uncertain about the status of their

possessory rights to the diversions, which adversely affects their property values.

Because SHWCA has demonstrated that its members will be adversely affected by

the judgment, and because a successful appeal could remedy the members’ injuries

by clarifying their water rights, SHWCA’s appeal of the order denying intervention

is not moot.

2. Although SHWCA has standing to appeal the denial of intervention, the

district court properly denied SHWCA’s motion to intervene. In order to show that

4
it was entitled to intervene as of right under Federal Rule of Civil Procedure 24(a),

SHWCA had to demonstrate that: (1) its motion was timely; (2) it had a

“‘significantly protectable interest’ in the action”; (3) the disposition of the action

“would impair or impede [SHWCA’s] ability to protect that interest”; and (4) its

interests may have been “inadequately represented by the other parties.” Allied

Concrete & Supply Co. v. Baker, 904 F.3d 1053, 1067 (9th Cir. 2018) (quoting

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011)). The

relevant question in assessing if SHWCA has standing to appeal its denial of

intervention to begin with is whether it has shown sufficient interest in the outcome

of the litigation now. But on the merits of the motion to intervene, the question is

whether SHWCA showed that it met the four-part intervention standard when it

moved to intervene. See Oakland Bulk & Oversized Terminal, LLC v. City of

Oakland, 960 F.3d 603, 620 (9th Cir. 2020) (“Intervenors, however, failed to

identify this potential argument at the time of their motion, and may not do so for

the first time after trial.”). SHWCA argues for the first time on appeal that the

Colorado Ditch Bill, 43 U.S.C. § 1761(c), created a non-discretionary duty for the

Forest Service to issue DBEs to statutory-compliant diversions. But SHWCA had

not adequately explained the nature of its claimed interests—or how those interests

were not adequately represented by the Forest Service—while the motion was

5
before the district court. Because this argument was not presented to the district

court, we affirm the denial of intervention.

3. At the conclusion of the liability phase, the district court wrote that under

the Colorado Ditch Bill, the Forest Service retains jurisdiction to place conditions

on a DBE for the benefit of listed species, with the consequence that they are

subject to consultation. Because SHWCA members did not participate in the

liability phase, they are not bound by the district court’s determination that DBEs

for which they have filed applications are subject to consultation.

AFFIRMED.2

2
The State of Idaho’s motion for leave to file an amicus brief in support of
SHWCA is GRANTED (DE 33).
6
Idaho Conservation League v. Salmon Headwaters Conservation, No. 20-35033
FILED
AUG 25 2021
BEA, Circuit Judge, Dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

Article III limits the jurisdiction of the federal courts to actual “Cases” and

“Controversies.” U.S. CONST. art. III, § 2. This court lacks the authority to rule on

a dispute, no matter how fleetingly, unless the party invoking federal jurisdiction

demonstrates standing to sue by first alleging and then proving a concrete,

traceable, and redressable harm. The Salmon Headwaters Conservation

Association (“SHWCA”), an unsuccessful intervenor in this now-concluded

litigation between the Idaho Conservation League (“ICL”) and the U.S. Forest

Service, failed to prove standing and thus cannot challenge the judgment below on

its own. Because my colleagues exceed our jurisdiction by reaching the merits of

an appeal that should have been dismissed, I respectfully dissent.

I.

This case began when the ICL sued to compel the Forest Service to consult

with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service

about endangered fish in Idaho’s Sawtooth Valley pursuant to Section 7 of the

Endangered Species Act, 16 U.S.C. § 1536. The ICL claimed that permit and

easement applications for private water diversions currently pending before the

Forest Service amounted to discretionary agency actions within the scope of the

consultation requirement. The SHWCA, an association of landowners with private

water diversions and pending easement applications, moved to intervene under
Federal Rule of Civil Procedure 24 to defend its members’ preexisting water rights,

which it claimed could be impacted by the subject matter of the litigation. The

district court denied intervention after concluding that the SHWCA failed to set out

an interest that was not adequately represented by the Forest Service. Instead, the

court allowed the SHWCA to intervene permissively at the remedy stage of the

litigation in case the ICL asked the court to compel the Forest Service to impose

interim regulations on private water rights prior to the completion of the

consultation process. Despite this allowance, the SHWCA appears not to have

meaningfully participated in remedial discussions.

The district court held that actions taken on the permits and easements were

discretionary agency actions subject to the consultation requirement, awarded

summary judgment to the ICL, and ordered the Forest Service to engage in

consultation. The court entered final judgment, the terms of which required

consultation to begin according to a stipulated timeline agreed upon by the ICL and

the Forest Service; the SHWCA was not named in the judgment and did not join in

the stipulation. The Forest Service voluntarily withdrew its initial notice of appeal

and declined to seek further review. The SHWCA, however, subsequently

appealed the final judgment on to the merits and as to the denial of the motion to

intervene, arguing that the district court’s decision subjected its members’ water

rights to the risk of future regulation.

2
 II.

Article III requires the party invoking federal jurisdiction to demonstrate

standing by setting out some concrete, particularized, and actual or imminent harm

traceable to the challenged conduct and redressable by the court. TransUnion LLC

v. Ramirez, 141 S. Ct. 2190, 2203 (2021). The invoking party must prove standing

“with the manner and degree of evidence required at the successive stages of the

litigation.” Id. at 2208 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992)). At summary judgment, that means producing “evidence and specific

facts” of concrete harm, traceability, and redressability. Ctr. for Biological

Diversity v. Exp.-Imp. Bank of the U.S., 894 F.3d 1005, 1012 (9th Cir. 2018).

Standing “must be met by persons seeking appellate review, just as it must

be met by persons appearing in courts of first instance.” Hollingsworth v. Perry,

570 U.S. 693, 705 (2013) (quoting Arizonans for Official English v. Arizona, 520

U.S. 43, 64 (1997)). Where, as here, an actual or unsuccessful intervenor seeks to

appeal independently of an original party to the case, the intervenor must establish

that the judgment below inflicted a concrete harm on “a judicially cognizable

interest of [its] own.” Id. at 707; Diamond v. Charles, 476 U.S. 54, 62–64 (1986);

Didrickson v. Dep’t of Interior, 982 F.2d 1332, 1338 (9th Cir. 1992).

The ICL invoked the district court’s jurisdiction by first alleging and then

producing some evidence of its members’ standing. Three ICL members who live

3
near the Sawtooth Valley submitted declarations detailing their recreational,

aesthetic, educational, and professional interests in the area’s waterways and

aquatic life. Each of the three averred that the Forest Service’s failure to consult

with federal wildlife agencies regarding the impact of private water diversions on

protected fish directly harmed these interests. See Dkt. No. 26.3–5, Idaho Cons.

League v. U.S. Forest Serv., Case No. 1:18-cv-44 (D. Idaho Dec. 14, 2018). In

other words, the ICL adduced some evidence that the Forest Service harmed ICL’s

members by failing to comply with statutory requirements designed to protect their

interests. See Lujan, 504 U.S. at 572 & n.7. The district court redressed this injury

by awarding the ICL summary judgment and issuing the requested order

compelling the Forest Service to engage in consultation.

By contrast, the SHWCA failed to provide evidence of its members’

standing for at least two reasons. First, the SHWCA failed to produce evidence

that the judgment below inflicted concrete harm on any of its members’ “judicially

cognizable interest[s].” Hollingsworth, 570 U.S. at 707. The SHWCA argues for

the first time on appeal that the “district court’s order impaired SHWCA’s ability

to protect [its members’] property interests from government control” by implying

that the Forest Service has discretionary authority to regulate permanent easements

for private water diversions granted by Congress through the Colorado Ditch Bill

Act, 43 U.S.C. § 1761. Reply Br. 9. Never mind that arguments, even arguments

4
for standing, are generally forfeited or waived when presented this late in the

proceedings. See California v. Texas, 141 S. Ct. 2104, 2116 (2021) (refusing to

consider “a novel alternative theory of standing” not argued below or presented on

certiorari). Never mind that fear of future regulation does not establish a concrete

and imminent injury because there are multiple contingent steps between

consultation and the Forest Service deciding to enforce new regulations on private

water diversions. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013)

(rejecting a “speculative” injury theory that “relie[d] on a highly attenuated chain

of possibilities”). Rather, the SHWCA’s argument fails simply because

“arguments in briefs are not evidence” and the limited evidence it did submit is

plainly insufficient. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015).

The three declarations submitted by the SHWCA “do not affirmatively show

personal knowledge of specific facts” from which one can infer a concrete injury to

a protected right as required at the summary judgment stage. Shakur v. Schriro,

514 F.3d 878, 890 (9th Cir. 2008) (cleaned up); see Lujan, 504 U.S. at 561; Ctr. for

Biological Diversity, 894 F.3d at 1012–14. The first and second declarations were

submitted by SHWCA founder Jon Christianson and merely describe the

association’s purpose. The third declaration was submitted by SHWCA member

W. Michael Humphreys, who owns an agricultural property irrigated in part by

water diverted from public lands. The two-page Humphreys Declaration states that

5
Forest Service representatives have asked to enter his land “to implement the

process of consultation” and have “made it clear” that the agency “will require new

and specific operation and maintenance requirements” for his diversions and “is

currently in the process of undertaking these measures respecting [his] property.”

Dkt. No. 17-2, at 2. Which measures? When will these measures be undertaken?

How will the measures injure Humphreys, and what is the nature of the injury?

Because the Humphreys Declaration is silent on these factual points, it fails to set

out evidence of concrete harm.

In TransUnion, the Supreme Court held that mere statutory violations are

not enough to establish Article III standing. Ramirez sued and obtained

a judgment against a credit reporting agency on behalf of an over 8,000-person

class for including inaccurate information in their credit reports and for failing to

comply with procedures mandated by the Fair Credit Reporting Act. The credit

agency had also disseminated the inaccurate credit reports of about 2,000 class

members to third parties. 141 S. Ct. at 2200–02. The Court held that inaccuracies

in a consumer’s internal credit file did not inflict a concrete injury unless the file

had been transmitted to third parties and thereby caused reputational harm. Id. at

2209. The Court rejected the argument that the inaccuracies themselves injured

class members by raising the risk of future harm because such claimed injury was

“too speculative to support Article III standing” and because “the plaintiffs did not

6
demonstrate a sufficient likelihood” that the inaccurate reports would be requested

by and provided to third parties. Id. at 2212. Only the named plaintiff and the

2,000 class members whose reports were disseminated had standing because only

these plaintiffs had proven a concrete harm. Id. at 2214.

In County of Okanogan v. National Marine Fisheries Service, 347 F.3d 1081

(9th Cir. 2003), by contrast, our court found that landowners who held permits for

water diversions had standing to challenge conditions placed on those permits by

the Forest Service. While considering modifications to existing permits, the Forest

Service had engaged in consultation with federal wildlife agencies that concluded

additional conditions were required to protect endangered fish. Id. at 1084. The

Forest Service decided to impose new conditions on the permits that expressly

limited the amount of water that permit holders could divert for private use. Id.

Thus, our court held that the permit holders had standing to challenge the Forest

Service’s statutory authority to impose the conditions. Id.

Here, the Humphreys Declaration states a general worry that the Forest

Service may inflict harm in the future by failing to respect the property rights that

the SHWCA believes were conferred upon its members by the Colorado Ditch Bill

Act. As in TransUnion, the Humphreys Declaration fails to state facts which set

out a sufficient risk of future harm or to identify any specific concrete harm that

would result from potential new regulatory controls, if imposed. We do not know

7
whether Humphreys will need to spend money to comply with the requirements,

will suffer a reduction in usable water, will endure other harms because of the

regulatory effort, or will suffer no harm at all. Unlike the plaintiffs in County of

Okanogan, the SHWCA has not identified a particular offending regulatory action

or a concrete harm that such regulatory action would inflict. In effect, the

Humphreys Declaration states that bureaucrats talked about what they may attempt

to require in the future with respect to his property. That may be cause for future

vigilance, but it is not yet an imminent “Case” or “Controversy.” The absence of

specifics is understandable given that consultation is years away from completion

and may or may not prompt any regulatory action at all. But that lack of ripeness

only further suggests that this dispute is not ready for judicial resolution and does

not excuse the SHWCA from its burden on standing. See In re Coleman, 560 F.3d

1000, 1005 (9th Cir. 2009) (cases must involve “a substantial controversy” about

issues that are “definite and concrete, not hypothetical or abstract” (cleaned up)).

Second, the SHWCA failed to produce any evidence that the risk of

regulation is “fairly traceable” to the judgment below. California, 141 S. Ct. at

2113. That is not surprising because, as my colleagues concede, Mem. Dispo. 6,

the SHWCA and its members were not parties to the case and are not bound by the

resulting judgment. See Smith v. Bayer Corp., 564 U.S. 299, 313 (2011); 7AA

WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 1789 (3d ed. Apr. 2021). The

8
SHWCA’s members are not estopped from challenging future Forest Service

actions impacting their private water diversions and would not be disadvantaged by

stare decisis when doing so because “[a] decision of a federal district court judge is

not binding precedent in either a different judicial district, the same judicial

district, or even upon the same judge in a different case.” Camreta v. Greene, 563

U.S. 692, 709 n.7 (2011) (cleaned up). On their own terms, the judgment and

consultation order in this case do not require the Forest Service to initiate

consultation as to any private water diversion that the agency or a court of law

concludes is outside the agency’s “discretionary involvement or control[.]”

The hypothetical risk of regulation does not arise from the judgment below,

but instead flows from preexisting statutes and regulations authorizing the Forest

Service to manage public lands. The Humphreys Declaration makes no connection

between the district court’s decision and the reported statements by Forest Service

employees that the agency will soon “implement[]” new “measures.” It is

therefore “purely speculative” whether the potential measures referenced in the

Humphreys Declaration “can be traced” to the judgment “or instead result from

decisions made by” the Forest Service without regard to the judgment. Simon v. E.

Ky. Welfare Rights Org., 426 U.S. 26, 42–43 (1976); see also Allen v. Wright, 468

U.S. 737, 758–59 (1984) (private school segregation not traceable to federal tax

policy favorable to private schools because the causal relationship was unclear).

9
 The SHWCA produced no evidence of concrete harm traceable to the

judgment below and therefore lacks Article III standing. Because our jurisdiction

is at an end, “the only function remaining … is that of announcing the fact and

dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).

III.

My colleagues nevertheless assume jurisdiction over this appeal based on

two theories that breathe life into a not-yet-controversy. Neither are persuasive.

A.

First, my colleagues assert that unsuccessful intervenors always have

standing to appeal the denial of intervention. Mem. Dispo. 3. That is not correct.

In the typical case, the original parties invoke federal jurisdiction by

initiating an action and seeking review on appeal. Because the court already has

jurisdiction, “an intervenor who performs neither of those functions and no other

function that invokes the power of the federal courts need not meet Article III

standing requirements.” Vivid Entm’t, LLC v. Fielding, 774 F.3d 566, 573 (9th

Cir. 2014). To appeal a decision on its own, however, “an intervenor must

independently demonstrate standing.” Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945, 1950 (2019). This jurisdictional rule must be satisfied before the

court engages with the challenged ruling. For this reason, the Supreme Court has

10
repeatedly dismissed intervenor appeals for lack of standing regardless whether

intervention was properly granted below. See, e.g., id.; Hollingsworth, 570 U.S. at

705–07; Diamond, 476 U.S. at 64. Standing is an “irreducible constitutional

minimum” for any exercise of federal jurisdiction, and Rule 24’s intervention

provisions do not and cannot jump the analytical queue by requiring courts to

consider an appeal from the denial of intervention without first considering

standing. Lujan, 504 U.S. at 560.

The denial of intervention under Rule 24 is not a “procedural injury” that

automatically gives rise to Article III standing. Parties seeking to invoke federal

jurisdiction based on a procedural deprivation must prove that the procedure

protects some underlying “concrete interest[]” from injury. Summers v. Earth

Island Inst., 555 U.S. 488, 496 (2009) (quoting Lujan, 504 U.S. at 572 n.7); see id.

at 497 (“[T]he requirement of injury in fact is a hard floor of Article III jurisdiction

that cannot be removed by statute.”). The Supreme Court has repeatedly held that

parties lack standing to invoke federal jurisdiction to enforce “a procedural right in

vacuo” without proof of an injury in fact. Id. at 496; see, e.g., TransUnion, 141 S.

Ct. at 2210–14; Spokeo, Inc. v. Robins, 136 S Ct. 1540, 1549 (2016); Lujan, 504

U.S. at 572. Rule 24 recognizes that it may often be good policy to allow the

participation of a broad range of parties in an established case or controversy. But

good policy is not the standard for Article III standing, and an unsuccessful

11
intervenor must demonstrate standing to appeal the denial of intervention

independently of the original parties to the case.

As explained above, the SHWCA failed to produce evidence of a concrete

and traceable harm that intervention could have served to protect. Moreover, the

regulatory harm that the SHWCA asserts on appeal suffers from a fatal imminence

problem because the hypothetical threat of enforcement of an as-yet-nonexistent

regulation is insufficient to establish Article III standing. See Clapper, 568 U.S. at

410; In re Volkswagen, 894 F.3d 1030, 1045 (9th Cir. 2018) (rejecting injury

theory based on “speculative” threat of enforcement against private vehicle

owner); Or. Prescription Drug Monitoring Program v. DEA, 860 F.3d 1228,

1234–35 (9th Cir. 2017) (rejecting injury theory based on threat of administrative

subpoenas that were not certainly impending). Perhaps the district court should

have allowed intervention and expanded the scope of the case. Or perhaps not.

But the SHWCA would have lacked standing to haul the Forest Service into court

at this juncture for as-yet-nonexistent infringements on its members’ property

rights, and so it lacks standing now to argue that it should be allowed to assert the

same argument below after the judgment is vacated and the proceedings reopened.1

1
The majority’s standing authorities are not on point. The first quoted authority
comes from West Coast Seafood Processors Association v. NRDC, 643 F.3d 701
(9th Cir. 2011), a case about the “capable of repetition, yet evading review”
exception to mootness. The observation that “one must not conflate the issue in
the underlying litigation … with the controversy in this appeal over [the] motion to

12
 B.

Next, my colleagues assert that this case was not mooted by the Forest

Service’s acquiescence in the judgment because the interagency consultation

process itself harms SHWCA’s members by making them “uncertain about the

status of their possessory rights to the diversions, which adversely affects their

property values.” Mem. Dispo. 4. Setting aside the fact that appellate standing,

not mootness, is at issue when an unsuccessful intervenor appeals the denial of

intervention after entry of final judgment, the majority is wrong to rely on a theory

of injury the SHWCA never once articulated or supported with record evidence.

The Humphreys Declaration cannot, even in the summary judgment posture,

reasonably be read to provide evidence of harm through diminution in value:

Since the District Court’s final judgment in December of 2019, I have
been contacted on several occasions by Forest Service representatives
from the Sawtooth National Recreational Area. Forest Service
representatives have sought access to my land to inspect conditions on
the streams, my diversions, and my property to implement the process
of consultation. These Forest Service representatives have made it
clear to me that the Forest Service will require new and specific

intervene” referred to the panel majority’s holding that the merits issue (challenges
to a biannual fishing quota) would likely recur while the intervention issue
(mootness brought on by voluntary dismissal of the case by the original party)
likely would not. Id. at 705. The second quoted authority merely restates the
principle that parties must have standing to appeal the denial of intervention
independently of the original parties to the case: “Persons denied intervention in
the trial court clearly have standing to appeal the denial of intervention, but if
intervention was properly denied have no greater right to appeal the judgment
entered between others than other nonparties.” 15A WRIGHT & MILLER, FED.
PRAC. & PROC. JURIS. § 3902.1 (2d ed. April 2021) (emphasis added).

13
 operation and maintenance requirements and restrictions on any Ditch
Bill easement recognized that are connected to the diversions to our
family’s private property. The Forest Service is currently in the
process of undertaking these measures respecting our property.

Dkt. No. 17-2, at 1–2. This showing is woefully inadequate as evidence that

SHWCA’s members suffered or will soon suffer a loss in property value because

of Forest Service consultation with federal wildlife agencies. Proof of standing on

this basis would have required some objective evidence of a loss in value, perhaps

in the form of an appraisal, assessment, lost sale, loss of potential buyers, projected

loss in agricultural productivity, or the like. Neither the Humphreys Declaration

nor any other evidence submitted by the SHWCA supports an inference that the

specter of consultation about endangered fish has or will soon cause an objective

loss or diminution in property value. Evidence of subjective fear of loss in value

would probably not have sufficed, cf. Clapper, 568 U.S. at 417–18, but the

Humphreys Declaration says nothing even about subjective reactions to

consultation. 2

2
The majority’s mootness cases fail to support its conclusion. The first, Western
Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), merely restated
and applied the rule that intervenors must have standing to appeal a judgment
independently of the original parties. Id. at 482. The second, United States v.
Sprint Communications, Inc., 855 F.3d 985 (9th Cir. 2017), was an appeal from the
denial of intervention by a qui tam relator who argued that the Attorney General
had sued the same defendant to deprive the relator of statutory proceeds from any
resulting judgment or settlement. We held that an intervening settlement between
the Attorney General and the defendant did not moot the relator’s appeal because
reversal would afford an “avenue to some remedy.” Id. at 990. That is not

14
 The majority gleaned the theory that the value of SHWCA members’

properties have or could soon be harmed by consultation from outside the record.

It may be a good theory. But the SHWCA relied on a different theory: That

“Forest Service control over the ditches and water rights is the injury.” Reply Br.

9 (emphasis added). That is the theory that we must evaluate here because the

SHWCA bears the burden on standing. See TransUnion, 141 S. Ct. at 2207 (“As

the party invoking federal jurisdiction, the plaintiffs bear the burden of

demonstrating that they have standing.”); Clapper, 568 U.S. at 412 n.4 (“[I]t is

respondents’ burden to prove their standing by pointing to specific facts.”). As

explained above, that theory fails because the SHWCA submitted no evidence that

the Forest Service has or will soon exercise such regulatory control or that such

control would harm its members in concrete and particularized ways.

* * *

The SHWCA’s failure to demonstrate Article III standing deprives us of

jurisdiction over this appeal. Because the majority insists on reaching the merits

anyways, I respectfully dissent.

surprising, since the relator had standing to challenge the claimed deprivation of
significant financial reward. By contrast here, the SHWCA never demonstrated
the concrete interest required to establish standing.

15