SAVE THE BULL TROUT; FRIENDS OF THE WILD SWAN; ALLIANCE FOR THE WILD ROCKIES v. MARTHA WILLIAMS, in hеr 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
No. 21-35480
United States Court of Appeals, Ninth Circuit
November 1, 2022
D.C. No. 9:19-cv-00184-KLD
FOR PUBLICATION
ORDER AND AMENDED OPINION
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
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, аnd 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 mеrits 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
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 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
Finally, the panel held that plaintiffs’ challenge to the Plan was precluded because thе 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 rеached 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.
* This summary constitutes nо part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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, Wаshington, 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 Roсkies, 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 <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).>
OPINION
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 cоncerning 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 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.”
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.”
(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 spеcies 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.
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
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 detеrmined 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 enterеd 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. 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 аnd instead chose to appeal. Id.
Friends then returned to the Oregon district court and filed a motion under
Friends declined to appeal the dеnial of their motion to amend. Instead, they added Save the Bull Trout as a plaintiff and initiated a new action, this time in the 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 Serviсe 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
DISCUSSION
We first address the Service‘s challenge to Plaintiffs’ standing to sue before explaining why Plaintiffs’ claims are precluded.
I. STANDING
Friends of the Wild Swan and Alliance for the Wild Rockies have standing to challenge the 2015 Bull Trоut 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 & 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
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
II. CLAIM PRECLUSION
Claim preclusion is a doсtrine 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 whеre “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.
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-аppeal 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 chаllenge the legality of the 2015 Bull Trout Recovery Plan under
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 аppeal 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 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.
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.
HAWKINS
UNITED STATES CIRCUIT JUDGE