51 F.4th 1101
9th Cir.2022Background
- Plaintiffs Save the Bull Trout, Friends of the Wild Swan, and Alliance for the Wild Rockies challenged the U.S. Fish and Wildlife Service’s 2015 Bull Trout Recovery Plan under the ESA citizen-suit provision.
- Friends of the Wild Swan and Alliance for the Wild Rockies previously sued in the District of Oregon; the Oregon court dismissed their ESA claims for failure to state a nondiscretionary-duty claim, granted leave to amend, but the plaintiffs declined to amend and appealed.
- The Ninth Circuit affirmed the Oregon dismissal on appeal; after losing, Friends sought to amend via Rule 60(b)/15 but the Oregon court denied reopening the judgment; plaintiffs did not appeal that denial.
- Plaintiffs then filed a new suit in the District of Montana (adding Save the Bull Trout). The Montana court declined to dismiss on claim-preclusion grounds but granted summary judgment to the Service on the merits.
- The Ninth Circuit held the two Oregon organizations had standing (procedural injury via Section 1533(f) recovery-plan procedures) but affirmed the Montana judgment on the alternative ground of claim preclusion: the Oregon litigation constituted a final judgment on the merits, claim identity and privity were satisfied, and plaintiffs waived their opportunity to replead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Friends and Alliance to challenge the Plan | Plaintiffs asserted procedural injury: Service’s deficient recovery plan deprived members of procedural protections that safeguard aesthetic/recreational interests | Service contested standing | Court: Friends and Alliance have standing — member declarations show cognizable aesthetic/recreational/conservation interests and there is a non-speculative possibility that revising the Plan would redress them (procedural-injury standard satisfied) |
| Whether Service needed a cross-appeal to raise claim preclusion on appeal | Plaintiffs implied waiver because Service did not cross-appeal | Service argued preclusion is an alternative ground for affirmance and was preserved below and in briefing | Court: No cross-appeal required; alternative ground properly raised and may support affirmance |
| Claim identity (same claim or could have been raised earlier) | Plaintiffs sought to litigate additional statutory theories in Montana | Service argued the Additional Claims could and should have been included in the Oregon action | Court: Claims are identical in substance; additional theories were available and should have been brought earlier |
| Privity between plaintiffs in two suits | Save the Bull Trout was not in Oregon case, but plaintiffs argued different party | Service argued the organizations share common interest and are in privity | Court: Privity exists among the organizations; plaintiffs did not dispute this before the court |
| Final judgment on the merits in Oregon (preclusive effect) | Plaintiffs argued Oregon dismissal/restrictions did not produce a final, preclusive merits judgment because leave to amend was denied under stricter post-appeal standards and magistrate language suggested repleading | Service argued plaintiffs declined earlier chance to amend, appeal risked affirmance, and Rule 12(b)(6) dismissal is a merits judgment for preclusion purposes | Court: Oregon dismissal for failure to state a claim is a merits judgment; plaintiffs’ strategic decision to appeal and then abandon amendment made the judgment final and preclusive; claim preclusion bars the Montana suit |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing framework: injury-in-fact, causation, redressability)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (procedural-injury redressability standard: some possibility suffices)
- Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (2000) (organizational standing via members)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (procedural-injury principles in environmental suits)
- Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985 (9th Cir. 2005) (claim preclusion bars claims that could have been raised earlier; denial of leave to amend can be preclusive)
- Media Rts. Techs., Inc. v. Microsoft Corp., 922 F.3d 1014 (9th Cir. 2019) (party invoking preclusion bears burden to establish its elements)
- Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064 (9th Cir. 2003) (privity/common interest principles)
- Stewart v. U.S. Bancorp, 297 F.3d 953 (9th Cir. 2002) (Rule 12(b)(6) dismissal is a judgment on the merits for res judicata)
- Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) (res judicata principles)