October 8, 2008

Ninth Circuit rules on conservation groups' standing

By Ninth Circuit rules on conservation groups' standing

In an opinion issued today, the Ninth Circuit in Salmon Spawning & Recovery Alliance v. Gutierrez held that a coalition of salmon conservation groups lacked standing to pursue two claims against the National Marine Fisheries Service and other agencies arising out of a 1999 treaty between the US and Canada governing salmon harvests.  The groups contended that (1) the Service's failure to consult adequately over the 1999 treaty in a 2005 biological opinion violated the ESA; they also argued that the Service continues to violate the ESA by (2) implementing the treaty's harvest limits, and (3) not reinitiating consultation.  As to the first claim, the court held that it could provide no relief to the groups that would redress their injury (excessive take of salmon), because the injury was caused by the 1999 treaty, which the court cannot undo.  As for the second claim, the court held that, even though it could overturn the bi-op, that remedy would not be likely to redress the groups' injury:  US withdrawal from the treaty might well produce an increase in Canadian salmon takes.  But the court reversed the lower court and found that the groups had established standing to pursue their third claim, viz., the failure to reinitiate consultation.  Critical to the court's reasoning that standing was established was the fact that the groups' third claim advanced (like its first claim) a procedural injury, which relaxes the "fairly traceable" and "likely to be redressed" components of standing.  Yet unlike the first claim, the court found that the groups' had established standing because an order to the Service to reinitiate consultation could result in a "jeopardy" finding, which would then authorize the US not to implement the 1999 treaty (unlike the first claim, where an overturning of the bi-op would not lead to an undoing of the treaty; in this respect, one wonders whether the groups' first claim was moot).

The opinion presents a nice explication of procedural, substantive, statutory, and group standing.

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