On June 14, 2023, a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a lawsuit brought by Wildearth Guardians and other environment activist groups challenging the grazing permit decisions of the U.S. Forest Service in the Colville National Forest in Eastern Washington. The district court found that plaintiffs had no standing and the appellate court agreed. Wildearth Guardians v. U.S. Forest Service, No. 21-35936 (9th Cir. June 14, 2023).
The case arose out of decisions by the Forest Service to permit livestock grazing on national forest land. Plaintiffs opposed this action on the ground that the grazing permits would lead to increased conflict between grey wolves and livestock which would in turn cause the Washington Department of Fish and Wildlife to kill more wolves. The gray wolf is no longer listed as endangered under federal law but is listed as endangered under Washington state law. Plaintiffs claimed that the Forest Service actions violated the National Environmental Policy Act of 1969 (NEPA) and the National Forest Management Act of 1976.
A plaintiff suing in federal court must prove standing to sue under Article III of the Constitution, which requires satisfaction of the familiar three-part test in Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992): (1) an injury in fact (2) that is fairly traceable to the defendant’s challenged actions (3) that will likely be redressed by a favorable judicial decision. Here, it was uncontested that plaintiffs had alleged a cognizable injury in fact: plaintiffs’ members’ aesthetic enjoyment from observing and studying wild wolves would be injured by killing the wolves. However, the case for standing failed because the claimed injury – inability to enjoy the wolves that have been killed – could not be fairly traced to the Forest Service’s grazing decisions. This was because the Forest Service had no involvement in the killing of the wolves, and the state agency that carried out the killing did so for reasons unrelated to grazing. As the court explained:
Here, the claimed injury arises from the actions of a third party that is two steps removed from the Service. The Service does not kill wolves, nor does it regulate those who do. It regulates livestock grazing, but WildEarth does not object to grazing in itself. Rather, WildEarth objects to grazing because it may lead to depredations, which may in turn lead the Department of Fish and Wildlife to consider and in some cases exercise its discretion to lethally remove wolves. Lethal removal, the direct cause of WildEarth’s injury, is not regulated by the Service. [Slip op. at 10.]
Nor was the appellate court persuaded by the argument that, because plaintiffs asserted a procedural injury under NEPA, the standing requirements should be “relaxed:”
[T]he causation and redressability requirements are “relaxed” for procedural claims only in the sense that a plaintiff “need not establish the likelihood that the agency would render a different decision after going through the proper procedural steps.” … A plaintiff still must show “a likelihood that the challenged action, if ultimately taken, would threaten a plaintiff’s interests.” … And even for procedural claims, when “an ‘asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed’ to demonstrate causation and redressability.” [Slip op. at 11 (citations omitted)].
Standing to sue is not a subject that is likely to stimulate a lively discussion at a cocktail party. But more often than not, lack of standing is what ends environmental and other activist litigation in federal court.