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
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).
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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.
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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
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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
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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
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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.
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