Peter Stavrianoudakis, et al v. Usfws, et alPeter Stavrianoudakis, et al v. Usfws, et al
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETER STAVRIANOUDAKIS; KATHERINE STAVRIANOUDAKIS; SCOTT TIMMONS; ERIC ARIYOSHI; AMERICAN FALCONRY CONSERVANCY, Plaintiffs-Appellants,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; CHARLTON H. BONHAM, in his official capacity as Director of California Department of Fish and Wildlife; JIM KURTH, in his official capacity as Deputy Director Exercising the Authority of the Director of California Department of Fish and Wildlife; MARTHA WILLIAMS, Defendants-Appellees.
OPINION
Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding
Argued and Submitted November 13, 2023 San Francisco, California
Filed July 24, 2024
Before: Sidney R. Thomas, Danielle J. Forrest, and Salvador Mendoza, Jr., Circuit Judges.
Opinion by Judge Forrest; Partial Concurrence and Partial Dissent by Judge S.R. Thomas
SUMMARY*
Article III Standing
In an action brought by individual falconers and the American Falcon Conservancy alleging that state and federal regulations impose unconstitutional conditions on their right to obtain a falconry license and that the unannounced, warrantless inspections that they must consent to violate the Fourth Amendment and the Administrative Procedures Act, the panel: (1) reversed the district court’s dismissal for lack of standing of plaintiffs’ unconstitutional-conditions claim against the California Department of Fish and Wildlife (CDFW); and (2) affirmed the district court’s dismissal for lack of standing of their remaining claims against CDFW and the U.S. Fish and Wildlife Service (FWS).
The falconers challenged the requirement, included in both the state and federal regulations, that they submit to unannounced, warrantless inspections as a condition of obtaining a falconry license. As to their standing on their claim against the CDFW, the panel noted that under the well-settled doctrine of “unconstitutional conditions,” the government may not require a person to give up a constitutional right in exchange for a discretionаry benefit. California conditions falconry licenses on applicants’ annual certification that they agree to unannounced warrantless inspections. The panel held that simply agreeing to submit to those inspections, in the absence of an actual inspection, amounted to the relinquishment of Fourth Amendment rights. Therefore, the falconers’ alleged injury in fact is the forced choice. In addition to injury, the two remaining standing requirements were also satisfied. The panel further held that because the falconers sufficiently alleged an injury in fact, constitutional ripeness was also satisfied. Accordingly, the panel reversed the district court’s dismissal of the Falconers’ unconstitutional-conditions claim against CDFW for lack of standing.
The panel held that the falconers’ unconstitutional-conditions claim asserted against FWS was unripe. Because FWS has delegated falconry licensing authority to California, a lengthy chain of events would have to take place before the falconers could show a remediable impact traceable to FWS. The panel concluded that the connection between the falconers’ asserted injury and FWS is too attenuated and hypothetical at this point to support federal question jurisdiction over the falconers’ unconstitutional-conditions claim against FWS.
The falconers also contended that the federal and California authorization of unannounced inspections violates the Fourth Amendment both facially and as-applied because they authorize unreasonable warrantless searches of the falconers’ private home, curtilage, and other property. The panel held that the falconers’ direct challenge failed because they have not alleged that they were subjected to warrantless inspection under the challenged regulations. Because the falconers sought declaratory and injunctive relief, the panel considered whether they had Article III standing to seek prospective relief. The panel held that the falconers failed to allege any facts about the frequency оr volume of unannounced inspections that California regulators undertake, but relied primarily on the existence of the regulation authorizing unannounced inspections. The panel concluded that the falconers had not sufficiently demonstrated injury in fact as to the unannounced-inspection claim. Because the falconers lacked standing to directly challenge the authorization of unannounced inspections, they also lacked standing to challenge this authorization under the Administrative Procedures Act.
The American Falcon Conservancy also asserted an unconstitutional-conditions claim and an unannounced-inspection claim on behalf of their members. Like the individual plaintiffs, the panel concluded that the American Falcon Conservancy met the associational standing requirements for its unconstitutional-conditions claim but not for its unannounced-inspection claim.
Concurring in part and dissenting in part, Judge S.R. Thomas agreed that the district court properly dismissed the falconers’ claim that the regulations violated the Fourth Amendmеnt because they had not been subjected to an inspection under the current regulations and could not establish that a future inspection was imminent. He disagreed that the falconers had standing to challenge the state regulations under the unconstitutional-conditions doctrine, and would affirm the district court’s dismissal of all of the falconers’ remaining claims.
COUNSEL
Daniel T. Woislaw (argued), Pacific Legal Foundation, Arlington, Virginia; James
John D. Butterfield (argued), Deputy Assistant Attorney General; Nhu Q. Nguyen and Courtney S. Covington, Deputy Attorneys General; Russell B. Hildreth, Supervising Deputy Attorney General; Robert W. Byrne, Senior Assistant Attorney General; Rob Bonta, Attorney General of California; Office of the California Attorney General, Sacramento, California; Michael T. Gray (argued) and Daniel Halainen, United States Department of Justice, Environment & Natural Resources Division, Todd Kim Assistant Attorney General; United States Department of Justice, Washington, D.C.; Philip Kline, United States Department of the Interior, Washington, D.C.; Brodie M. Butland, Assistant United States Attorney, Office of the United States Attorney, Fresno, California; for Defendants-Appellees.
OPINION
FORREST, Circuit Judge:
The question presented is whether individual falconers and the American Falcon Conservancy (AFC) have standing to challenge the constitutionality of the California Department of Fish and Wildlife’s (CDFW) and United States Fish and Wildlife Service’s (FWS) regulations authorizing unannounced, warrantless inspections of falconers’ property and records and requiring falconers to agree to such inspections as a condition of obtaining a falconry license.
Plaintiffs assert that the challenged state and federal regulations impose unconstitutional conditions on their right to obtain a falconry license and that the unannounced, warrantless inspections that they must consent to violate the Fourth Amendment and the Administrative Procedures Act (APA). The district court dismissed Plaintiffs’ Fourth Amendment-based claims for lack of Article III standing, concluding that Plaintiffs failed to demonstrate injury in fact because they have not been subjected to a warrantless inspection under the challenged regulations and have not shown that future warrantless inspections are certainly impending. We reverse the district court’s dismissal of Plaintiffs’ unconstitutional-conditions claims brought against CDFW and affirm as to the dismissal of their remaining claims.
I. BACKGROUND
A. Falconry Regulation
“Falconry is caring for and training raptors for pursuit of wild game, and hunting wild game with raptors.”
Two provisions of the federal regulatory scheme are at issue here. The first authorizes regulators to conduct unannounced inspections of “[f]alconry equipment and records . . . in the presence of the permittee during business hours on any day of the
Originally, there were parallel federal and state permitting systems. States could either elect to prohibit falconry or to allow it under regulations that met minimum federal standards.
Also at issue in this case are California’s falconry regulations. California has adopted a licensing scheme that requires falconers to renew their licenses annually.
I understand that my facilities, equipment, or raptors are subject to unannounced inspection pursuant to subsection 670(j), Title 14, of the California Code of Regulations. I certify that I have read, understand, and agree to abide by, all conditions of this license, the applicable provisions of the Fish and Game Code, and the regulations promulgated thereto.
B. Plaintiffs’ Falconry Activities
Individual Plaintiffs Eric Ariyoshi, Scott Timmons, and Peter Stavrianoudakis (collectively, the Falconers) are California residents who have been licensed falconers for decades. Plaintiff Katherine Stavrianoudakis is not a falconer, but she is married to and lives with Peter Stavrianoudakis.
Ariyoshi’s falcon lives in an unrestricted mews1 30 feet from his home. Timmons’s three birds live in mews and other structures directly adjacent to his home. Peter Stavrianoudakis’s falcon lives primarily in
AFC is an organization “dedicated to protecting and preserving the practice of falconry, and protecting falconers’ rights.” AFC has approximately 100 members nationwide, all of whom are subject to federal and state falconry regulations. The Falconers are AFC members.
In thеir joint complaint, the individual Plaintiffs and AFC describe six unannounced inspections that state and federal law enforcement agents have conducted. Timmons alleges that in 1992, when he was in college, CDFW officers approached him at his mother’s property in Thousand Oaks, California to ask whether he possessed a particular red-tailed hawk. Timmons told them the hawk had flown away, which the officers already knew because they had the hawk in their possession. Peter Stavrianoudakis alleges that sometime around 1983, his home was searched, and he was arrested, all without a warrant, “by armed members of [CDFW] related to his lawful activities as a non-resident falconer in Nevada.”
AFC alleges that armed FWS agents conducted warrantless searches of the homes and property of two of its Washington-state members—Stephen Layman and Lydia Ash (Washington members)—in 2004 and 2009, respectively. AFC also alleges that armed CDFW agents conducted warrantless searches of the homes and property of two of its California members—Fred Seaman and Leonardo Velazquez (Califоrnia members)—in 2016 and 2017, respectively.
C. District Court Proceedings
Plaintiffs’ first amended complaint alleged that federal and state falconry regulations violate the First, Fourth, and Fourteenth Amendments of the United States Constitution, as well as the APA. The district court dismissed with leave to amend the Fourth Amendment claims, and partially dismissed the APA claim, all for lack of standing.
Plaintiffs filed a second amended complaint, asserting four claims based on the Fourth Amendment. Count I alleges that California’s requirement that license applicants agree to unannounced inspections is a facial and as-applied violation of the Fourth Amendment (unconstitutional-conditions claim). Count II alleges that California’s regulation allowing unannounced inspections is a facial and as-applied violation of the Fourth Amendment because it authorizes warrantless searches of licensees’ homes, curtilage, papers, and effects (unannounced-inspections claim). In Count III, Katherine Stavrianoudakis alleges that the unannounced-inspection regulations violate her Fourth Amendment rights as a cohabitant оf a falconer. Finally, Count IX alleges that the federal unannounced-inspection regulations violate the APA.
The district court dismissed all the Fourth Amendment-based claims without leave to amend. The district court concluded that the individual Plaintiffs’ alleged injury related to future inspections was too speculative because they “have never been subjected to the unannounced inspections pursuant to the challenged regulations.” Likewise, the district court found that AFC lacked associational standing because it did not allege that its members face immediate or threatened injury from unannounced, warrantless inspections. The district court dismissed the Fourth Amendment allegation in the APA claim because, without standing to bring their substantive claims, Plaintiffs lack standing to bring an APA-based challenge to the same regulations.
II. DISCUSSION
“We review de novo an order granting a motion to dismiss for lack of standing under
A. Unconstitutional-Conditions Claim
The Falconers challenge the requirement, included in both the state and federal regulations, that they submit to unannounced, warrantless inspections as a condition of obtaining a falconry license. They claim that this requirement unconstitutionally conditions falconry licenses on waiver of “their Fourth Amendment rights to be free from unreasonable warrantless searches of their private homes, protected curtilage, and protected effects.” The district court dismissed this claim, concluding that the Falconers lack standing and the claim is unripe because the Falconers failed to allege that they had been subjected to or imminently faced an unannounced inspection. We reverse as to the Falconers’ claim against CDFW and affirm as to their claim against FWS.
1. CDFW
a. Standing
The Falconers must establish the three “irreducible” elements of Article III standing. Lujan, 504 U.S. at 560. First, that they “suffered an injury in fact that is concrete, particularized, and actual or imminent.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Second, that their “injury was likely caused by the defendant[s].” Id. And third, that their “injury would likely be redressed by judicial relief.” Id.
We begin with injury. “Under the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit . . . .” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). As the Supreme Court noted a century ago, the state may condition the benefits it bestows, but “the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights.” Frost v. Railroad Commission, 271 U.S. 583, 593–94 (1925). This is so because “[i]f the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all.” Id.
We have recognized that the unconstitutional-conditions “doctrine is especially important in the Fourth Amendment context” because, “[u]nder modern Fоurth Amendment jurisprudence, whether a search has occurred depends on whether a reasonable expectation of privacy has been violated.” United States v. Scott, 450 F.3d 863, 867 (9th Cir. 2006) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
A plaintiff suffers a “constitutionally cognizable injury” whenever the government sucсeeds in pressuring the plaintiff into forfeiting a constitutional right in exchange for a benefit or the government withholds a benefit based on the plaintiff’s refusal to surrender a constitutional right. Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606–07 (2013); id. at 607 (holding that the plaintiff suffered a “constitutionally cognizable injury” where he refused to waive his constitutional rights and was therefore denied a discretionary benefit); cf. Dolan, 512 U.S. at 379 (reversing lower court’s rejection of an unconstitutional-conditions claim where the “government had granted [the] petitioner’s permit application subject to conditions” requiring the petitioner to waive her Fifth Amendment rights). That is, “regardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.” Koontz, 570 U.S. at 606.
Here, California conditions falconry licenses on applicants’ annual certification that they “understand, and agree to abide by, all conditions of this license, the applicable provisions of the Fish and Game Code, and the regulatiоns promulgated thereto,” including unannounced, warrantless inspections.
The question presented here is whether simply agreeing to submit to those inspections, in the absence of an actual inspection—see Part II.B—amounts to the relinquishment of Fourth Amendment rights. We conclude that it does. By successfully applying for a falconry license, the Falconers certify that they will forego a claim to Fourth Amendment protections. An inspection may not occur or, if it does, it may not violate the Fourth Amendment because it is reasonable. But the idea that the Falconers surrender nothing unless and until an unlawful inspection occurs—that California extracts a blanket waiver that is, in fact, entirely superfluous—defies logic. Rather, we take the regulation to mean what it says, and agreeing to unannounced, warrantless inspections without any сonsideration of the reasonableness of such inspections implicates Fourth Amendment rights. See Johnson v. Smith, No. 23-3091, 2024 U.S. App. LEXIS 14019, at *8–33 (10th Cir. June 10, 2024) (outlining Fourth Amendment precedent concerning regulatory inspections).
Therefore, the Falconers’ alleged injury in fact is the forced choice: retention of their Fourth Amendment rights or receipt of a falconry license, which is required to lawfully practice falconry.
In addition to injury, the two remaining standing elements are also satisfied, which the parties seemingly concede. CDFW enforces California’s falconry-license requirements,
b. Ripeness
Article III also requires that a plaintiff’s claim be ripe for adjudication. See Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 944 (9th Cir. 2021) (“The ripeness doctrine, which aims to avoid premature and potentially unnecessary adjudication, ‘is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’” (quoting Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003))). There are two ripeness considerations: constitutional and prudential.
Constitutional ripeness overlaps with the injury-in-fact element of Article III standing, and “therefore the inquiry is largely the same: whether the issues presented are definite and concrete, not hypothetical or abstract.” Id. (internal quotation marks and citation omitted). Because the Falconers sufficiently allege an injury in fact, constitutional ripeness is satisfied.
Prudential ripeness concerns “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. (quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 149 (1967)). “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126 (9th Cir. 2009) (quoting US W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999)). In cases against a government agency, relevant considerations include “whether the administrative action is a definitive statement of an agency’s position; whether the action has a direct and immediate effect on the complaining parties; whether the action has the status of law; and whether the action requires immediate compliance with its terms.” Id. (quoting Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 780 (9th Cir. 2000)).
Here, the challenged licensure condition is final and is imposed annually. While the record is “admittedly sparse,” as in Stormans, the challenged circumstances “are not hypothetical”—when the Falconers apply for a license renewal, they must include the certification that they agree to submit to warrantless, unannounced inspections. Id. Whether that condition violates the Fourth Amendment is a “primarily legal” inquiry. Id. Accordingly, this issue is fit for judicial review.
As to hardship, “a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial loss.” Id. (quoting US W. Commc’ns, 193 F.3d at 1118). Relevant considerations include “whether the ‘regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.’” Id. (quoting Ass’n of Am. Med. Colls., 217 F.3d at 783). The Falconers have shown hardship because, “unless [they] prevail in this litigation, they will suffer the very injury they assert”—waiving their Fourth Amendment rights as a condition of lawfully practicing falconry. Id.
For all these reasons, we reverse the district court’s dismissal of the Falconers’ unconstitutional-conditions claims against CDFW for lack of standing.
2. FWS
The Falconers’ unconstitutional-conditions claim asserted against FWS is unripe. As just discussed, “[f]or a case to be ripe, it must present issues that are definite and conсrete, not hypothetical or abstract.” Clark v. City of Seattle, 899 F.3d 802, 809 (9th Cir. 2018) (citation omitted); see also Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (explaining that when “measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing” (citation omitted)).
Here, because FWS has delegated falconry licensing authority to California, a lengthy chain of events would have to take place before the Falconers could show a
The Falconers suggest that because California’s challenged licensure requirement is imposed at the direction of a federal regulation,
Authority to 17 States,
It may be that if California falls out of full compliance with federal regulations by not requiring license applicants to “agree that the[ir] falconry facilities and raptors may be inspected without advance notice,”
We conclude that the connection between the
B. Unannounced-Inspections Claim
The Falconers also directly contend that the federal and California authorization of unannounced-inspections,
The Falconers’ direct challenge fails because they have not alleged that they were subjected to warrantless inspection under the challenged regulations. See Hotop v. City of San Jose, 982 F.3d 710, 716 n.4 (9th Cir. 2020) (concluding that plaintiffs’ allegations “support[ed] only a facial challenge to the regulations” because the complaint did not allege that the regulations had been unlawfully applied to the plaintiffs in the past); cf. Potter v. City of Lacey, 46 F.4th 787, 801 (9th Cir. 2022) (Bennett, J., dissenting) (“Potter also argues that the RV Parking Ordinance violаtes the
The Falconers rely on Meland v. Weber, which held that when a party “is the actual object of the government‘s regulation, then ‘there is ordinarily little question that the action or inaction has caused him injury.‘” 2 F.4th 838, 845 (9th Cir. 2021) (quoting Lujan, 504 U.S. at 561–62); see also Illinois v. Krull, 480 U.S. 340, 354 (1987). They contend that because the unannоunced-inspection requirement applies only to licensed falconers, they are the objects of this regulation. But plaintiffs have standing “as the objects of regulation” only when the challenged regulation imposes a “clear burden” on them. Cal. Sea Urchin Comm‘n v. Bean, 883 F.3d 1173, 1181 (9th Cir. 2018), as amended (Apr. 18, 2018). A clear burden is established when, for example, the challenged
Here, the Falconers failed to identify any comparable, concrete effects—such as self-censorship or any kind of behavioral change—prompted by the unannounced inspections provisions that would amount to a clear burden. Rather, they essentially claim that they feel threatened by the possibility of a future inspection. No authority establishes that mere discomfort constitutes constitutionаl injury.
We also are not persuaded that the object-of-regulation analysis is the correct paradigm. Instead, because the Falconers seek declaratory and injunctive relief, we consider whether they have “Article III standing to seek prospective relief.” Villa v. Maricopa County, 865 F.3d 1224, 1229 (9th Cir. 2017). In this context, a plaintiff “must allege either continuing, present adverse effects due to . . . exposure to Defendants’ past illegal conduct, or a sufficient likelihood that [plaintiff] will again be wronged in a similar way.” Id. (internal quotation marks and citations omitted). The Falconers’ allegations do not address the present-adverse effect criterion in any way. Standing therefore depends on whether they have alleged a “sufficient likelihood” of a future wrong.
The Falconers acknowledge that they have not been inspected (at least not in several decades), but they contend that the “pattern or practice of unreasonable warrantless searches” authorized by the unannounced-inspection provisions create a likelihood of future individualized injury. This is insufficient tо “show that the threat of future injury is ‘actual and imminent, not conjectural or hypothetical.‘” Bolden-Hardge v. Off. of the Cal. State Controller, 63 F.4th 1215, 1220 (9th Cir. 2023) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).
The Falconers argue that it is impossible for them to identify with any certainty when unannounced inspections will occur. That may be, but the Falconers failed to allege any facts about the frequency or volume of unannounced inspections that California regulators undertake, which would inform the “likelihood” that the Falconers face a risk of such inspection. Cf. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164–65 (2014) (holding that injury was imminent because plaintiffs demonstrated that enforcement actions took place 20 to 80 times each year and thus “are not a rare occurrence“). Rather, the Falconers rely primarily on the existence of the regulation authorizing unannounced inspections. While the regulation is of course material, mere speculation that regulators will exercise their inspection authority is insufficient to establish standing for a claim seeking prospective relief. See, e.g., Cal. Tow Truck Ass‘n v. City & County of San Francisco, 693 F.3d 847, 866 (9th Cir. 2012) (“[T]he mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a case or controversy within the meaning of Article III.” (quoting San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996))).
In sum, the Falconers have not sufficiently demonstrated injury in fact as
C. AFC‘s Claims
AFC also asserts an unconstitutional-conditions claim and an unannounced-inspection claim on behalf of its members. AFC alleges that the inspection regulations injure its members, not the organization itself. See Columbia Basin Apartment Ass‘n v. City of Pasco, 268 F.3d 791, 798 (9th Cir. 2001) (“[A]n organization may have standing to assert the claims of its members even where it has suffered no direct injury from a challenged activity.“). To establish associational standing and bring suit on behalf of its members, AFC must establish that: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Cent. Sierra Env‘t Res. Ctr. v. Stanislaus Nat‘l Forest, 30 F.4th 929, 937 (9th Cir. 2022) (quoting Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 343 (1977)). Like the individual Plaintiffs, we conclude that AFC has met these requirements for its unconstitutional-conditions claim but not for its unannounced-inspection claim.
Regarding the unconstitutional-conditions claim asserted against CDFW, the first requirement is satisfied becausе the Falconers are AFC members and they have individual standing to bring the unconstitutional-conditions claim. The second requirement is also met because AFC‘s interest in ensuring that its members are not subject to unconstitutional conditions in obtaining falconry licenses is germane to AFC‘s purpose of promoting “the broadest liberties possible” for falconers. And the third requirement is fulfilled because AFC requests only declaratory and injunctive relief, which “do not require individualized proof.” Columbia Basin Apartment Ass‘n, 268 F.3d at 799.
But as with the Falconers’ claims, we affirm the district court‘s dismissal of AFC‘s unconstitutional-conditions claim as asserted against FWS and its unannounced-inspection claim. For the reasons discussed regarding the Falconers, AFC‘s unconstitutional-conditions claim against FWS is not ripe. As to AFC‘s unannounced-inspection claim, the first requirement of organizational standing is not met. The Falconers failed to establish sufficient injury to have standing to bring this claim. AFC points to four of its members who are not parties here and who have experienced unannounced inspections. Specifically, AFC alleges that FWS conducted
Even assuming that the alleged prior warrantless inspections demonstrate that AFC‘s non-party members suffered injury, such injury supports only a damages claim to remedy a past violation. Bolden-Hardge, 63 F.4th at 1221. Because AFC seeks prospective relief—and “at least one member” of an organization must have “standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association“—more must be shown as relates to the California and Washington members. United Food & Com. Workers Union Loc. 751 v. Brown Grp., 517 U.S. 544, 555 (1996) (emphasis added).
As previously discussed, “standing to seek prospective relief” exists where plaintiffs are suffering either “continuing, present adverse effects” from the defendants’ past illegal conduct or “a sufficient likelihood” that they will be similarly wronged again in the future. Villa, 865 F.3d at 1229 (citations omitted). Just like the Falconers, AFC‘s allegations do not address the first сriterion in any way. And as to the second criterion, the operative complaint merely sets out the general allegation that “[w]arrantless searches of American Falconry Conservancy members’ private homes and other property by Defendants is widespread and on-going,” without any specificity about the likelihood that the Washington and California AFC members will be inspected without a warrant again. It is also worth noting that each AFC member identified was subjected only to one past inspection that occurred several years ago. These allegations do not establish “that the threat of future injury is ‘actual and imminent,‘” as opposed to “‘conjectural or hypothetical.‘” Bolden-Hardge, 63 F.4th at 1220 (quoting Summers, 555 U.S. at 493). AFC therefore lacks standing to bring its unannounced-inspection claim based on its identified Washington and California members because, although “[p]ast wrongs may serve as evidence of a ‘real and immediate threat of repeated injury,’ . . . they are insufficient on their own to support standing for prospective relief.” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102–03 (1983)).
AFFIRMED IN PART; REVERSED IN PART; REMANDED.8
S.R. THOMAS, Circuit Judge, concurring in part and dissenting in part:
The question in this сase is whether Plaintiff-Falconers have standing to challenge state and federal falconry regulations as violative of their
The
While most
Like all justiciability doctrines, the injury-in-fact requirement is designed to ensure that we “adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III.” Thomas v. Anchorage Equal Rights Com‘n., 220 F.3d 1134, 1138 (9th Cir. 2000). “By requiring the plaintiff to show an injury in fact, Article III standing screens out plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action.” Food & Drug Admin. v. Alliance for Hippocratic Medicine, 602 U.S. 367, 381 (2024).
As the majority opinion recounts, Falconers’ operative complaint advances two alternative theories of
The unconstitutional-conditions doctrine prohibits “the government from coercing people into giving [] up [constitutional rights]” by withholding benefits “from those who exercise them.” Koontz v. Johns Water Mgmt. Dist., 570 U.S. 595, 604 (2013). The doctrine originates in the Lochner Era, where it was used to strike down restrictions on commercial activity imposed as a “condition” of doing business. See, e.g. Frost & Frost Trucking Co. v. RR Comm‘n, 271 U.S. 583, 591–92 (1926); W. Union Telegraph Co. v. State of Kansas ex rel. Coleman, 216 U.S. 1, 35 (1910); see also Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1416 (1989). The conflict in those cases arose after the government brought an enforcement against a business entity for failing to abide by the restriction. Frost, 271 U.S. at 590; W. Union Telegraph, 216 U.S. at 7. Later, the unconstitutional-conditions doctrine was extended to government policies requiring individuals to forgo—or retaliating against individuals for engaging in—protected expression as a condition of receiving some benefit. See, e.g., Bd. of Cnty. Com‘rs, Wabunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 674–75 (1996); Speiser v. Randall, 357 U.S. 513, 529 (1958). The plaintiffs in those cases were injured by the government‘s termination of employment or denial of some benefit based on the plaintiffs’ “engaging in [protected] speech.” Speiser, 357 U.S. at 518; see also Umbehr, 518 at 617.
Today, the unconstitutional-conditions doctrine is most often litigated in the land use context, where it restricts local governments from “forc[ing]” a landowner to forego “her right under the
In the
The application of the unconstitutional-conditions doctrine to cases like this, where no search has occurred and the only alleged injury is the signing of a form, is
The recognition of this new type of injury has the unfortunate effect of opening a loophole in our standing jurisprudence. By allowing Falconers to mount an “unconstitutional-conditions” challenge to a law that they do not have standing to challenge directly, the majority opinion undercuts the restriction of prospective relief to those cases where the plaintiff “has suffered or is threatened with a concrete and рarticularized legal harm[.]” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 680 (9th Cir. 2023) (en banc).
III
Even if the imposition of an inspection requirement could by itself violate the unconstitutional-conditions doctrine, Falconers have not demonstrated that CDFW‘s regime actually burdens a protected right. That is because the
Where the unconstitutional-conditions doctrine applies, it bars the forced surrender of rights protected of the Constitution. Koontz, 570 U.S. at 606. Neither Falconers nor the majority explain precisely which constitutional protections Falconers have been forced to forgo. Falconers’ brief, for example, refers to the “right to demand a warrant,” but that is not an accurаte description of what the
The majority asserts that the substance of
Finally, in addition to the legal infirmities addressed above, there are prudential reasons to doubt Falconers’ demand for “robust constitutional scrutiny” of “warrantless search conditions . . . on government benefits, licenses, and privileges.” By delinking Article III injury analysis from the substance of
The government regularly requires citizens to consent to search and seizure as a condition of receiving some benefit or participating in some activity. We have repeatedly confirmed the reasonableness of various types of routine “suspicionless search[]” under longstanding exceptions to the warrant requirement. Kincade, 379 F.3d at 823. Familiar examples of include physical pat-downs conducted by TSA agents as a condition of flying, see e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1138 (9th Cir. 2006); United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005); sobriety tests conducted by police officers as a condition of driving оn public roads, see, e.g., Demarest v. City of Vallejo, Cal., 44 F.4th 1209, 1212–20 (9th Cir. 2022); Birchfield v. North Dakota, 579 U.S. 438, 478 (2016); building inspections conducted by city officials as a condition of receiving a rental or business license, see, e.g., Killgore v. City of S. El Monte, 3 F.4th 1186, 1190 (9th Cir. 2021); Rush v. Obledo, 756 F.2d 713, 720 (9th Cir. 1985); and searches conducted by probation and parole officers as a condition of supervised release, see e.g., United States v. Betts, 511 F.3d 872, 877 (9th Cir. 2007).
Under the majority‘s logic, a plaintiff would have standing to challenge the laws and regulations authorizing all of these practices at the moment they agree to the condition, either expressly by signing a form, or impliedly by participating in the regulated activity. This expansion in constitutional standing under the
In sum, Falconers’ unconstitutional-conditions theory reflects an impermissible attempt to circumvent the Article III injury requirement in the context of the