Center for Biological Diversity, Inc. v. de la Vega

• Court: District Court, N.D. California
• Decided: October 20, 2021
• Docket: 3:21-cv-01182
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CENTER FOR BIOLOGICAL Case No. 21-cv-01182-JCS DIVERSITY, INC., et al., 8 Plaintiffs, ORDER REGARDING MOTION TO 9 DISMISS v. 10 Re: Dkt. No. 17 DEBRA HAALAND, et al., 11 Defendants.

12 13 I. INTRODUCTION 14 Plaintiffs Center for Biological Diversity (“CBD”) and Turtles Island Restoration Network 15 (“TIRN”) bring this case against Defendants the Secretary of the U.S. Department of Interior, 16 Debra Haaland,1 in her official capacity and the U.S. Fish and Wildlife Service (the “Service”), 17 asserting that Defendants failed to revise the Stock Assessment Reports (“SARs”) for nine stocks 18 of protected mammals—certain populations of sea otters, polar bears, walruses, and manatees—as 19 required by the Marine Mammals Protection Act (“MMPA”) and the Administrative Procedure 20 Act (“APA”). Compl. (dkt. 1) ¶ 1. Defendants move to dismiss for lack of Article III standing 21 and failure to state a claim on which relief may be granted, citing only Rule 12(b)(6) of the 22 Federal Rules of Civil Procedure in their motion, but also addressing Rule 12(b)(1) in their reply. 23 The Court held a hearing on July 23, 2021, where the parties agreed that the case is moot 24 as to three of the stocks at issue (the southern sea otter, Chukchi/Bering Seas polar bear, and 25 Southern Beaufort Sea polar bear) because Defendants have now published revised SARs for 26

27 1 Haaland has been confirmed as Secretary of the Interior since this case was filed, and is therefore 1 those stocks. Defendants’ motion to dismiss is therefore GRANTED to the extent Plaintiffs’ claim 2 is based on those stocks. As for the other stocks at issue, while Plaintiffs have sufficiently alleged 3 constitutional standing, Defendants’ motion is GRANTED under Rule 12(b)(6) for the reasons 4 discussed below, and Plaintiffs’ claims are DISMISSED with leave to amend.2 5 II. BACKGROUND 6 A. Statutory Framework 7 Under the MMPA’s framework, the Service has a nondiscretionary duty to review SARs 8 for strategic stocks on an annual basis and for non-strategic stocks on a triennial basis. 16 U.S.C. 9 § 1386(c)(1)(A)–(B). To conduct these internal reviews, the Service must utilize the “best 10 scientific information available” to assess whether a SAR should be revised for each stock. Id. 11 § 1386(a), (c)(2); see Mot. (dkt. 17) at 5 (acknowledging that the “best scientific information” 12 standard applies to internal reviews). If the Service’s review indicates that “the status of the stock 13 has changed or can be more accurately determined,” the Service must issue a revised stock 14 assessment report. 16 U.S.C. § 1386(c)(2). In doing so, the Service must publish “a notice of 15 availability”—which “include[s] a summary of the assessment and a list of the sources of 16 information or published reports upon which the assessment is based”—“of a draft stock 17 assessment report or any revision thereof and provide an opportunity for public review and 18 comment during a period of 90 days.” Id. § 1386(b)(1). The Service shall then publish in the 19 Federal Register “a notice of availability and a summary of the final stock assessment or any 20 revision thereof, not later than 90 days after . . . the close of the public comment period on a draft 21 stock assessment or revision thereof.” Id. § 1386(b)(3). 22 Under the APA, a “person suffering legal wrong because of agency action, or adversely 23 affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to 24 judicial review thereof,” meaning that an underlying statutory claim must be sufficiently pleaded 25 to give rise to a cause of action. 5 U.S.C. § 702. For the purpose of an APA claim, an agency 26 action includes the “failure to act,” and the court is vested with the authority to remedy such a 27 1 failure by “compel[ling] agency action unlawfully withheld or unreasonably delayed.” Id. §§ 2 551(13), 706(1). Under 5 U.S.C. § 706(1), “federal courts may order agencies to act only where 3 the agency fails to carry out a mandatory, nondiscretionary duty.” Norton v. S. Utah Wilderness 4 Alliance, 542 U.S. 55, 61 (2004) (citation and internal quotation marks omitted). Judicial review 5 of an agency’s failure to carry out a non-discretionary duty is limited to specific statutory 6 requirements, because enforcing compliance with broad statutory terms would amount to the 7 court’s overseeing an agency’s “day-to-day” management. Id. at 66–67. A court may also remedy 8 an APA claim by “hold[ing] unlawful and set[ting] aside agency action, findings, and conclusions 9 found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 10 law,” among other potential defects that can warrant such relief. 5 U.S.C. § 706(2). 11 B. Plaintiffs’ Complaint 12 1. Claim Asserted 13 Plaintiffs allege that Defendants: (1) did not complete timely reviews for six of the nine 14 stocks at issue (the northern sea otters of southwest, southcentral, and southeast Alaska, Florida 15 manatee, Antillean manatee of Puerto Rico, and Pacific walrus); and (2) did not produce a timely 16 final draft for three of the nine stocks at issue (the southern sea otter, Chukchi/Bering Sea polar 17 bear, and Southern Beaufort Sea polar bear). Compl. at 10–13. Because the parties agree that 18 Plaintiffs’ claim as to the latter three stocks is now moot, this order does not address them in 19 detail. Four of the six stocks that remain at issue (the northern sea otter of southwest Alaska, 20 Florida manatee, Antillean manatee, and Pacific walrus) are designated by the MMPA as strategic 21 and must be reviewed on an annual basis, while the other two stocks that remain at issue (the 22 northern sea otters of both southcentral Alaska and southeast Alaska) are designated as non- 23 strategic and must be reviewed every three years. Id. at 9–10. 24 Plaintiffs allege that this failure constitutes agency action which is unlawfully withheld or 25 unreasonably delayed, which has caused them and their members informational and procedural 26 injuries, and which ought to be compelled by this Court. Id. at 14. In the alternative, Plaintiffs 27 also allege that the Service’s failure to act is “arbitrary and capricious and not in accordance with 1 2. Marine Mammal Stocks at Issue 2 The Service has not published a revised SAR for the northern sea otters of southwest 3 Alaska (a strategic stock), southeast Alaska, and southcentral Alaska (non-strategic stocks) since 4 2014. Id. at 10 (citing 79 Fed. Reg. 22,154 (Apr. 21, 2014)). Plaintiffs allege the stocks of each 5 of these species has changed in the interim, and provide as examples that “the Secretary of the 6 Interior has issued offshore oil and gas leases and approved seismic surveys in Alaska that 7 negatively affect northern sea otter stocks,” and that “new information has become available 8 regarding climate-induced changes to sea otter habitat and food availability as well as the impacts 9 of the fishing industry on food availability and sea otter mortality.” Id. at 11. 10 The Service has not published a revised SAR for the Pacific walrus (a strategic stock) since 11 2014. Id. at 11. Plaintiffs allege that new population estimates suggest this stock’s population is 12 declining due to the loss of sea ice upon which the walruses depend, and that studies also indicate 13 “melting sea ice will continue to have increasingly detrimental consequences to the Pacific 14 walrus.” Id. at 12. Plaintiffs add that researchers report observing female walruses “spending 15 more time in the southwestern region of the Chukchi Sea due to changes in sea ice availability, 16 resulting in less time resting and foraging, and likely resulting in reduced female walrus body 17 condition,” a trend which will likely continue as sea ice retreats to higher latitudes. Id. Lastly, 18 Plaintiffs allege “new information regarding the impacts of ocean acidification on Pacific walrus 19 populations has been published by the scientific community,” and that oceanic “acidification is 20 driving changes in prey availability for walruses and therefore negatively impacting walrus 21 populations.” Id. at 13. 22 The Service has not published a revised SAR for the Florida manatee and Antillean 23 manatee (both strategic stocks) since 2014. Id. at 11. Plaintiffs allege that “[m]anatees face 24 increasing threats to their existence, including from watercraft-collision-related deaths,” which 25 resulted in at least 637 manatee deaths in Florida’s waterways in 2020 and “one of the deadliest 26 years for manatees” in 2019. Id. at 13. Plaintiffs add that “[m]anatees in both the southeastern 27 United States and Puerto Rico also face increasing threats from habitat loss and climate change” 1 warm water refuge is being worsened by climate-change-induced cold fronts, harmful algal 2 blooms are being worsened by increased precipitation and temperature, and tropical storms in 3 increasing frequency and intensity may cause stranding and calf separation as well as the 4 destruction of their seagrass feeding grounds. Id. 5 3. Allegations Regarding Standing 6 a. Representational and Organizational Injury 7 Plaintiffs allege that their interests and those of their members are harmed by the Service’s 8 failure to publish revised SARs. 9 CBD is a nonprofit conservation organization headquartered in Oakland, California which 10 is “dedicated to the preservation of biodiversity, native species, and ecosystems,” and which has 11 84,000 members, many of whom “reside in and/or visit the coastal areas of California, Florida, 12 Puerto Rico, and Alaska and adjoining marine waters where the marine mammals in this case 13 occur,” and all of whom “use the ocean and coastal areas for research, aesthetic enjoyment, 14 observation, and other recreational scientific, and educational activities.” Id. at 3. Plaintiffs allege 15 that CBD and its staff and members review scientific information about “marine mammals and 16 regularly comment on actions affecting marine mammals, including draft stock assessment 17 reports.” Id. Regarding the specific marine mammal stocks at issue, Plaintiffs allege:

18 [CBD] members and staff have researched, observed, photographed, enjoyed the habitat of, and sought protection for the polar bear, 19 walrus, and sea otter in Alaska. [CBD] members and staff have also regularly visited the shores and waters of California to observe, study, 20 and enjoy California sea otters. [CBD] members and staff have visited the habitat of the Antillean and Florida manatees, sought to observe 21 manatees, and enjoyed manatees in their marine environment. [CBD] members will continue to visit those areas in the future to appreciate 22 these marine mammals and their ocean and coastal environment. [CBD] members and staff derive scientific, recreational, 23 conservation, and aesthetic benefits from the existence of these marine mammals in the wild. [CBD] and its members also derive 24 benefits from information about and opportunities for public participation concerning marine mammals. 25 26 Id. 27 TIRN is a Marin County, California-based non-profit corporation with a similar 1 marine and terrestrial ecosystems and the wildlife that inhabit the oceans, including marine 2 mammals.” Id. TIRN has 114,000 supporters globally, including “research biologists, eco-tour 3 operators, and professional photographers and videographers, all of whom rely on healthy 4 populations of marine mammals to conduct their business.” Id. Regarding the regions where the 5 specific marine mammal stocks at issue occur, Plaintiffs allege that “TIRN’s members and staff 6 regularly use the coastal waters of the western United States, Alaska, Florida, and Puerto Rico for 7 observation, research, aesthetic enjoyment, and other recreational, scientific, and educational 8 activities,” and that many members and staff “spend time on the shores or in the waters of these 9 areas engaging in a number of wildlife-viewing activities, including swimming, snorkeling, 10 kayaking, scuba diving, and wildlife watching.” Id. at 3–4. Lastly, Plaintiffs allege that “TIRN’s 11 members and staff intend to continue to study, visit, and observe—or attempt to study, visit, and 12 observe—these species in the future.” Id. at 4. 13 b. Procedural and Informational Injury 14 Plaintiffs also allege they are suffering procedural and informational injuries due to the 15 Service’s failure to review and publish revised SARs because the MMPA’s requirements for such 16 revisions are intended to “ensure that marine mammals are not adversely affected by decisions 17 based on obsolete information” and, since “Plaintiffs have concrete interests in ensuring up-to-date 18 stock assessments, Plaintiffs’ interests are adversely affected by the Service’s failure to fulfill its 19 procedural duties under the MMPA to timely update the stock assessment reports.” Id. at 4–5. 20 Plaintiffs allege that “the Service’s failure to prepare these stock assessment reports [renders 21 Plaintiffs] unable to use the information contained in the report and . . . unable to participate in the 22 public comment process.” Id. at 5. Plaintiffs assert injury on the basis that the MMPA’s 23 requirements for SAR revision “were designed to promote public participation and information, as 24 demonstrated by the public comment requirement [and because] Plaintiffs and their members 25 research and promote conservation of marine mammals, this information and participation is 26 useful to Plaintiffs to carry out their organizational missions.” Id. 27 c. Causation 1 SARs for the species within their jurisdiction because “outdated stock assessments result in 2 management decisions that are less informed and often less protective of these marine mammal 3 populations than they would [otherwise] be [and] because many of these stocks have either 4 declined since their most recent stock assessment or are now subject to newly identified and often 5 greater threats, the lack of updated stock assessments increases the risks to these species.” Id. at 6 4. This lack of updated information, Plaintiffs allege, “result[s] in activities being permitted that 7 adversely affect the survival and recovery of these species and increase the chances that 8 population declines and other adverse impacts to these animals will occur but will go unnoticed 9 and/or unaddressed.” Id. The resulting harm to stocks in which Plaintiffs have an interest creates 10 injury to Plaintiffs and their members “by reducing the likelihood that [they] will be able to 11 continue to observe, research, and enjoy these marine mammals in their natural environment.” Id. 12 d. Redressability 13 Plaintiffs allege that their injuries are redressable through declaratory and injunctive relief 14 because “[a]n order compelling the stock assessment reports by a date certain will reduce the 15 likelihood that excessive take of marine mammals will be authorized.” Id. at 5. If such an order is 16 granted, Plaintiffs allege that the resulting revised SARs will provide Plaintiffs with access to the 17 SARs’ information and the opportunity to participate in commenting, and result in taking 18 authorizations which “better reflect the limits that the stocks can sustain at this time” and make it 19 “less likely that the marine mammals at issue will be adversely affected.” Id. 20 C. Defendants’ Motion to Dismiss 21 Defendants argue that Plaintiffs’ complaint should be dismissed for failure to establish 22 standing as to all of the SARs at issue and for failure to state a claim upon which relief can be 23 granted under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. Mot. at 1–4. 24 1. Arguments Regarding Standing 25 Defendants argue that Plaintiffs have failed to adequately allege the three elements 26 required for standing: injury in fact, causation, and redressability. 27 a. Injury in Fact 1 establish either representational or organization injury. Id. at 7–8. As to representational injury, 2 Defendants argue that both Plaintiffs only make “vague and generalized” allegations as to how 3 their members and staff interact with the nine species at issue. Id. at 8. First, Defendants argue 4 that Plaintiffs fail to identify any specific individual members with “concrete plans to study, teach 5 about, view, or visit any of the nine species at-issue,” and refer only to categories of people such 6 as researchers, tour operators, and videographers. Id. at 8. Defendants suggest that without 7 “stating how these people . . . will be ‘directly affected [by the challenged inaction] apart from 8 their special interests in the subject,’” Plaintiffs have not sufficiently alleged standing. Id. at 9 9 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 563 (1992)) (brackets in original). Next, 10 Defendants argue that Plaintiffs’ alleged injuries are not “actual or imminent,” and that Plaintiffs 11 “have not given, and cannot give, an example of how their members are currently suffering” a lack 12 of access to the marine mammals at issue. Id. Citing Lujan, Defendants contend that Plaintiffs 13 have not alleged the sort of specific “imminent” harm necessary to substitute for actual harm. Id. 14 Defendants also argue Plaintiffs fail to establish organizational injury, which requires that 15 “[a]n organization . . . suffered both a diversion of its resources and a frustration of its mission,” 16 rather than “simply a setback to the organization’s abstract social interests.” Id. at 10 (quoting La 17 Asociación de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 18 2010); Project Sentinel v. Evergreen Ridge Apartments, 40 F. Supp. 2d 1136, 1138 (N.D. Cal. 19 1999)) (internal quotation marks omitted). Defendants contend that both CBD and TIRN’s stated 20 conservational and protective objectives “purport to establish a connection to the species at-issue, 21 but do nothing to establish a concrete and demonstrable injury to either organization’s activities,” 22 and fail to allege any “diver[sion of] resources, how a specific program has been affected, or how 23 the overall social missions have been or will imminently be impacted in any way” by the alleged 24 failures of Defendants. Id. at 10–11. 25 Turning to a theory of procedural injury, Defendants argue that Plaintiffs misconstrue the 26 MMPA’s procedural requirements to include a procedural right to timely update SARs, while in 27 fact, the MMPA “creates a right to public comment only for draft revised SARs,” and that the 1 stock’s status has changed or can be more accurately determined.” Id. at 12 (citing Compl. ¶ 16; 2 16 U.S.C. § 1386(b)(1)). Here, Defendants argue, Defendants argue that “because the Service has 3 not issued draft revised SARs [for the six stocks that remain at issue], Plaintiffs do not yet have 4 any procedural rights to them under section 117, and therefore cannot allege that they have been 5 deprived of these procedural rights.” Id. 6 Similarly, Defendants argue that Plaintiffs fail to allege informational injury because 7 Plaintiffs were not denied access to any information to which they had a right under the MMPA. 8 In Defendants’ view, the only information to which Plaintiffs have a right is the content of the 9 draft revised and finalized SARs as well as a notice of availability and a summary of the final 10 revised SAR, and because the Service has determined that for six of the nine stocks, a draft revised 11 SAR is not yet due, Plaintiffs do not yet have any informational rights to them under the MMPA. 12 Id. at 13–14 (citing 16 U.S.C. § 1386(b)–(b)(3)). Defendants respond to what they regard as 13 Plaintiffs’ “faulty premise that updated or new information is available for review, and therefore, 14 the Service should have already determined to revise all nine SARs, which would have entitled 15 Plaintiffs to procedural and informational rights for the draft and final revised SARs,” by arguing 16 that this premise relies on an assumption that updated or new information exists, and that any 17 information that does exist is the “best scientific information available” per the MMPA’s 18 requirements. Id. (citing 16 U.S.C. § 1386(b)(3)). Lastly, Defendants cite Friends of Animals v. 19 Jewell, 828 F.3d 989 (D.C. Cir. 2016), in support of the premise that a plaintiff, like those here, 20 does “not suffer informational injury where [the] challenged statutory provision [does] not yet 21 entitle [that] plaintiff to information until certain further findings [are] made by the agency, even 22 though plaintiff alleged those findings should have been made already.” Id. at 14–15. 23 b. Causation 24 Defendants argue that Plaintiffs fail to establish causation, the second element of standing, 25 because the causal chain Plaintiffs have alleged between outdated stock assessments and their 26 members’ reduced ability to interact with marine mammals is “too speculative” and “extremely 27 lengthy and entirely vague and hypothetical.” Id. at 15. Defendants further contend that Plaintiffs 1 particular activities which would adversely impact these species if permitted, and instead rely on 2 “pessimistic assumptions about vague ‘management decisions’ and future discretionary permitting 3 decisions that are not challenged and cannot be addressed by this lawsuit.” Id. 4 c. Redressability 5 With respect to the element of redressability, Defendants argue that Plaintiffs have not 6 alleged sufficiently that their requested relief—an order compelling the SARs by a certain date—is 7 likely to redress the injuries alleged, because the injuries alleged directly flow from management 8 decisions which ought to be challenged separately at the time of their occurrence. Id. at 16. 9 Defendants argue that challenging the actual management decisions would be “much more ‘likely 10 to redress’ [Plaintiffs’] alleged injuries.” Id. Defendants further argue Plaintiffs have not shown 11 and cannot show that the court has the power to grant the relief being sought—an order 12 compelling the SARs by a certain date—because “the MMPA requires revised stock assessment 13 reports only where a review has found that the stock’s status ‘has changed or can be more 14 accurately described.’” Id. Defendants contend that “the Court cannot order the Service to revise 15 these six SARs where the Service has not determined that revisions are warranted based on the 16 best scientific information available.” Id. at 17. Defendants acknowledge that the Court could 17 order the Service to perform a mandated review (as opposed to revision) of these six stocks within 18 the statutorily established annual time frame, but argue that the Service will be doing such reviews 19 regardless and the Plaintiffs have not requested such relief. Id. 20 2. Arguments Regarding Failure to State a Claim 21 Along the same lines as their arguments regarding the Court’s power in the context of 22 redressability, Defendants contend that Plaintiffs have failed to state a claim upon which relief can 23 be granted because “Defendants have not determined revision is required and so no duty to revise 24 has arisen under the MMPA,” which only requires the Service to revise stock assessment reports if 25 and whenever the review indicates that a stocks status “‘has changed or can be more accurately 26 determined.’” Id. at 1, 17 (quoting 16 U.S.C. § 1386(c)(2)). Defendants emphasize that revisions 27 to SARs under the MMPA take place on an as-needed basis, while internal reviews to determine 1 and non-strategic stocks. Id. at 18. Defendants argue Plaintiffs have failed to state a claim for 2 which relief can be granted because their reviews are on schedule to be completed this year for the 3 northern sea otter of southwest, southcentral, and southeast Alaska, Florida manatee, Antillean 4 manatee of Puerto Rico, and Pacific walrus stocks. Id. at 5 (citing 16 U.S.C. § 1386(c)(2)). 5 Defendants further contend that the APA cannot provide the basis of a freestanding claim in the 6 absence of any violation of the MMPA. Id. at 18. 7 D. Plaintiffs’ Opposition 8 1. Arguments Regarding Standing 9 In their opposition, Plaintiffs state they have fulfilled the three elements of Article III 10 standing. Opp’n (dkt. 20) at 1. 11 a. Injury in Fact 12 Plaintiffs argue that they have representational standing based on injuries to their 13 members’ interests in and concrete future plans to enjoy the marine mammal stocks at issue, which 14 Plaintiffs have alleged could be harmed by uninformed management decisions. Id. at 5–8 (citing 15 Center for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009), in which CBD’s 16 members established standing based on their observational and aesthetic enjoyment of the polar 17 bears threatened by a challenged regulation). Plaintiffs contend that they therefore meet the test 18 for representational standing in that their members having standing to sue in their own right, the 19 interests in question are germane to the organizations’ purposes, and the lawsuit does not require 20 participation by individual members. Id. at 5. Plaintiffs argue the complaint sufficiently details 21 the risk that outdated assessments would result in less protective management decisions that 22 imminently harm the stocks’ sustainability. Id. at 8. 23 In the alternative, Plaintiffs contend that they have suffered informational injury because 24 the MMPA mandates the publication of timely SARs in the event of occurrences including new 25 population estimates and threats to stocks which Plaintiffs have alleged to have taken place. Id. at 26 9–10. Plaintiffs argue that the MMPA’s SAR disclosure requirements reflect Congressional intent 27 “to give the public a right to . . . information” including the marine mammal’s range, population, 1 mortality and serious injury caused by commercial fisheries and other impacts; and the potential 2 biological removal level. Id. at 9. 3 Plaintiffs also argue that the Service’s failure to follow the required procedure to review 4 the SARs annually or triennially and make revised SARs available for public comment amounts to 5 a procedural injury which impairs Plaintiff’s rights and interested in protecting the stocks at issue 6 in “two major ways: (1) it prevents Plaintiffs’ input or participation in developing new SARs and 7 (2) it forecloses the chance for current, sufficient SARs to guide management decision that will 8 better protect the species, which affects Plaintiff’s concrete interests in studying, viewing them, 9 and otherwise appreciating them in the wild.” Id. at 11. Plaintiffs contend that they need not 10 prove any downstream effect on marine mammals in order to assert these procedural interests. Id. 11 at 8–9, 11 (citing Mendoza v. Perez, 754 F.3d 1002, 1012–13 (D.C. Cir. 2014) (holding that a 12 plaintiff asserting injury to procedural rights need not prove that a different outcome would have 13 occurred if the procedure had been completed)). 14 Plaintiffs ask the Court to reject Defendants’ view that no procedural or informational 15 rights arise until Defendant publish a draft revised SAR, arguing that it would create a perverse 16 incentive to never begin the process of revision. Id. at 10. Plaintiffs contend that Defendants’ 17 argument “asks this Court to impermissibly disregard Plaintiff’s factual allegations and improperly 18 prejudge the merits of this case.” Id. 19 Plaintiffs argue that they have suffered three specific informational and procedural injuries: 20 (1) Plaintiffs and their members are deprived of the information in updated SARs to comment on 21 and advocate for wildlife protections in the context of other government action, like the ongoing 22 open comment period on Arctic drilling activities; (2) Plaintiffs and their members are deprived of 23 the chance “to participate in the public comment process” for SARs themselves, where they 24 regularly provide comment when SAR are actually published; and (3) Plaintiffs’ work towards the 25 protection of marine mammals from bycatch in fisheries is hampered because accurate SARs serve 26 as a basis for plans to reduce bycatch. Id. at 12–13. 27 b. Causation 1 management decisions for those marine mammals are misinformed and may lead to population 2 declines, thereby harming Plaintiffs’ interests in” the species at issue. Id. at 13. Plaintiffs contend 3 that they have alleged several concrete examples of such reliance, including the use of SARs to 4 guide management of fisheries, oil and gas extraction, military activities, and the like. Id. at 5 14. Plaintiffs contend that “although the causal chain is much shorter than Defendants assert, 6 causation may be found even if there are multiple links in the chain,” provided that those links are 7 “‘not hypothetical or tenuous’ and remain ‘plausible,’” and even if defendant was not “‘the sole 8 source’” of the injury, with the test for Article III standing being “‘less rigorous than proximate 9 causation.’” Id. at 14–15 (quoting Nat’l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 10 2002); Barnum Timber Co. v. U.S. EPA, 633 F.3d 894, 901 (9th Cir. 2011); Isabel v. Reagan, 394 11 F. Supp. 3d 966, 973 (D. Ariz. 2019)). Plaintiffs argue that they meet that standard, particularly 12 because a showing of procedural injury reduces their burden to show causation. Id. at 15 (citing 13 Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008)). 14 c. Redressability 15 Plaintiffs also argue they sufficiently pleaded the third element of standing, that the alleged 16 injuries are redressable through the relief sought, because compelling Defendants to revise the 17 SARS would reduce the likelihood of future excessive take authorizations and provide Plaintiffs 18 with the information and opportunity to comment they seek. Id. at 16. Plaintiffs argue that 19 declaratory relief would have a practical effect similar to an injunction. See id. at 17. As with 20 causation, Plaintiffs contend that the standard for pleading redressability is relaxed for procedural 21 injuries. Id. at 16–17. 22 2. Arguments Regarding Failure to State a Claim 23 Plaintiffs argue they have properly alleged facts establishing a claim under Rule 8(a) of the 24 Federal Rules of Civil Procedure by detailing the Service’s failure to fulfill its nondiscretionary 25 duty to review and revise marine mammal stock assessment reports in light of the alleged changes 26 to the stock and indications that the stock can be more accurately determined. Id. at 17. Plaintiffs 27 contend they have identified two discrete actions the Service failed to do in violation of its 1 17–18 (citing United States v. Monsanto, 491 U.S. 600, 607 (1989), for the proposition that the 2 word “shall” in a statute imposes a mandatory duty). 3 Plaintiffs argue that Defendants’ focus on their obligations to revise the SARs and ignore 4 that Plaintiffs allege the Service has failed to both periodically review the SARs and publish 5 revised SARs for the stocks at issue. Id. Plaintiffs also contend that the Service must have 6 violated its duty to review the SARs in light of allegations that the status of all the stocks have 7 changed, specifically that “‘[n]ew population estimates suggest that the Pacific walrus population 8 is declining’ and its sea ice habitat is melting”; “‘[t]he status of southwest, southcentral, and 9 southwest Alaska northern sea otter stocks has changed since the last [SAR] in 2014’” based on 10 new information about threats to their viability; and “‘the status of manatee stocks has changed 11 since 2014’ [given that] hundreds of manatees died in watercraft collisions in 2019 and 2020.” Id. 12 at 18–19 (quoting Compl. ¶¶ 42, 45, 46) (some alterations in original). Plaintiffs assert that the 13 MMPA need not set a specific deadline for SAR revisions in order to create a nondiscretionary 14 duty. Id. at 19 (citing In re A Community Voice, 878 F.3d 779, 784 (9th Cir. 2017); Earth Island 15 Inst. v. Wheeler, 464 F. Supp. 3d 1138, 1145–46 (N.D. Cal. 2020). 16 E. Defendants’ Reply 17 1. Arguments Regarding Standing 18 Defendants assert that “Plaintiffs have misconstrued Defendants’ motion as brought 19 entirely under [Rule] 12(b)(6),” and contend that even though they “did not explicitly state that 20 their standing challenge is brought under Rule 12(b)(1), their intent to challenge constitutional 21 standing as a threshold jurisdictional issue is evident,” and that even if they had not challenged 22 standing, “this Court has the authority and responsibility to examine jurisdictional issues at any 23 time.” Id. at 2–3 (citing Fed. R. Civ. P. 12(h)(3)). Defendants contend that Plaintiffs have not 24 established injury in fact sufficient for Article III standing because they fail to allege “such a 25 personal stake in the outcome of the controversy as to warrant [their] invocation of federal-court 26 jurisdiction.” Id. at 3 (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). 27 As to representational standing, Defendants argue that Plaintiffs’ allegations regarding the 1 inference of “an actual or imminent harm that is traceable to the challenged failure to act.” Id. at 2 4. 3 Turning to informational injury, Defendants acknowledge that a plaintiff can establish such 4 harm “when they are denied information to which they would otherwise be entitled under the 5 pertinent statute,” but argue that “Congress gave the Service wide discretion” as to whether to 6 publish revised SARs, and did not grant any public right to information or comment regarding 7 annual or triennial SAR reviews. Id. at 1, 6. Defendants note that where the Service 8 “determines. . . that a SAR does not need to be revised,” as it has done here for the six stocks that 9 remain at issue, “no publication requirement is triggered.” Id. at 6–7. Defendants argue that the 10 MMPA is distinct from statutes created primarily to ensure public access to information since the 11 provision at issue here is intended primarily “to inform agency management of incidental taking of 12 marine mammals in the course of commercial fishing operations.” Id. at 7–8. 13 Defendants argue that “the primary missing element from Plaintiffs’ procedural standing 14 argument is a concrete interest that is affected by the alleged deprivation.” Id. Defendants 15 contend that a procedural violation alone, without concrete harm, is insufficient to create Article 16 III standing. Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)). Defendants 17 argue that Plaintiffs’ allegation that they suffered injuries “tied to their inability to participate in 18 the public comment process” in which they regularly participate is circular and disallowed by 19 precedent in Summers, and that Plaintiffs fail to allege any additional specific or concrete injuries 20 resulting from the challenged agency inaction. Id. at 9–10. As with informational injury, 21 Defendants argue that the “procedural right to notice and comment is only triggered if the Service 22 determines revision is warranted and publishes a draft revised SAR in the Federal Register,” 23 which it has not so determined the six stocks still at issue. Id. at 10. 24 Additionally, Defendants contend that the MMPA does not require the Service to use the 25 potential biological removal levels gathered through SARs in determining the negligible impacts 26 of permitted activities, which negates the allegation that Plaintiffs suffer a concrete injury in the 27 form of misinformed negligible impact levels. Id. at 11–12 & n.6 (citing Taking Marine 1 Mexico, 86 Fed. Reg. 5322, 5346–47 (Jan. 19, 2021) (explaining in response to a public comment 2 why population abundance estimates in a SAR were not the best available scientific information 3 for the circumstances)). Defendants add that SARs do not set sustainable levels of mortality for 4 marine mammals, nor are they required to serve as “the sole sources of information in any 5 particular application, management decision, or take regulation,” but rather that the SARs’ 6 primary use is to “inform agency management of incidental take of marine mammals in the course 7 of commercial fishing operations.” Id. at 1 (footnote omitted). 8 2. Arguments Regarding Failure to State a Claim 9 Defendants contend that Plaintiffs fail to state a claim upon which relief can be granted 10 because, with respect to the duty to review rather than revise SARs, “Plaintiffs have not and 11 cannot allege more than conclusory statements that are unable to survive a motion to dismiss.” Id. 12 at 12. With respect to revision of the SARs, Defendant argue that Plaintiffs have not stated a 13 claim for the six SARs where Defendants have not conceded changed status. Id. Defendants 14 reiterate that the MMPA does not require the Service to publish its annual or triennial SAR 15 reviews with the public, and contend that “Plaintiffs have no way of knowing whether their 16 allegations are true” but rely instead “on pessimistic assumptions with no proof beyond 17 ‘threadbare recitals’ of the MMPA’s requirement.” Id. at 13 (quoting Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009)). Defendants argue that Plaintiffs’ claim that the Service has not conducted 19 mandatory reviews is simply a “legal conclusion couched as a factual allegation” that the Court is 20 not required to accept, and that Plaintiffs’ view that revisions to the SARs are required is based on 21 an assumption that “Plaintiffs’ knowledge of the best available scientific information is superior to 22 the Service’s knowledge.” Id. at 13–14. According to Defendants, the only relief the Court could 23 award is requiring “the Service to perform its mandatory reviews of the six SARs and reconsider 24 whether revisions are warranted, which is not the relief that Plaintiffs’ Complaint seeks.” Id. at 25 14. 26 III. ANALYSIS 27 A. Legal Standard 1 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss 2 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 3 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage 4 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 5 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 6 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 7 In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and 8 takes “all allegations of material fact as true and construe[s] them in the light most favorable to the 9 non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 10 1995). Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts 11 that would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 12 1990). A complaint must “contain either direct or inferential allegations respecting all the material 13 elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 15 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation 16 of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 17 (quoting Twombly, 550 U.S. at 555). “[C]ourts ‘are not bound to accept as true a legal conclusion 18 couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 19 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of 20 ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) 21 (alteration in original). Rather, the claim must be “‘plausible on its face,’” meaning that the 22 plaintiff must plead sufficient factual allegations to “allow[] the court to draw the reasonable 23 inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. 24 at 570). 25 Challenges to Article III standing are properly raised as asserting a lack of subject matter 26 jurisdiction under Rule 12(b)(1)—which Defendants failed to cite in their motion—rather than 27 failure to state a claim under Rule 12(b)(6). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). 1 based solely on the allegations in the complaint, courts conduct an inquiry that is “analogous to a 2 12(b)(6) motion.” Roberts v. Corrothers, 812 F.2d 1173, 1178 (9th Cir. 1987). Defendants’ error 3 in initially citing the wrong rule for their arguments regarding standing therefore does not 4 meaningfully alter the Court’s analysis.3 5 B. Constitutional Standing 6 Establishing Constitutional standing requires “[1] that plaintiff[s] have suffered an injury 7 in fact, which is an invasion of a legally protected interest which is concrete and particularized and 8 actual or imminent rather than conjectural or hypothetical; [2] that there be a causal connection 9 between the injury and conduct complained of so that the injury is fairly traceable to the 10 challenged action of the defendant and not the result of the independent action of some third party 11 who is not before the court; and [3] that it be likely, as opposed to merely speculative, that injury 12 will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–561 13 (1992). 14 1. Injury in Fact 15 To fulfill the first element, a “plaintiff must show that [they are] under threat of suffering 16 ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not 17 conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 1149 (2009). At the 18 pleading stage, Plaintiffs may sufficiently allege a future injury if it is certainly impending or there 19 is a substantial risk of its occurrence based on the general factual allegations of injury. Lujan, 504 20 U.S. at 561; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). To establish standing 21 on behalf of its members, an organizational plaintiff must allege that “(1) its members would 22 otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane 23 to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires 24 3 While the error is not material to the outcome, Defendants’ assertion in their reply that “Plaintiffs 25 have misconstrued Defendants’ motion as entirely brought under Fed. R. Civ. P. 12(b)(6),” Reply at 3, when the motion explicitly purports to be brought under Rule 12(b)(6) and never cites Rule 26 12(b)(1), is a dubious attempt to shift the blame for Defendants’ error to Plaintiffs. Moreover, Defendants’ accusation, see id., that Plaintiffs have improperly sought to limit the scope of the 27 Court’s review by focusing on Rule 12(b)(6)—the only rule cited in Defendants’ motion—rings 1 the participation in the lawsuit of each of the individual members.” Hunt v. Wash. State Apple 2 Advert. Comm’n, 432 U.S. 333, 333 (1977). 3 In Summers, the Supreme Court found that—after the parties settled their dispute as to the 4 only specific project at issue—the plaintiffs did not have standing based on their alleged 5 procedural injuries resulting from their inability to file comments on the Forest Service’s action 6 exempting certain projects from environmental impact statement (“EIS”) requirements, despite 7 having the right to by statute, because the “deprivation of a procedural right without some concrete 8 interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create 9 Article III standing.” Summers, 555 U.S. at 496 (citing Lujan, 504 U.S. at 572). In Citizens for 10 Better Forestry, however, the Ninth Circuit held that “an environmental plaintiff was ‘surely . . . 11 harmed [when agency action] precluded the kind of public comment and participation [that the 12 National Environmental Protection Act] requires in the EIS process,’” because EIS findings 13 informed the regulation of national forests in which the plaintiffs had alleged sufficient interests in 14 through their use and enjoyment. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 15 961, 971 (9th Cir. 2003) (quoting West v. Sec’y of Dep’t of Transp., 206 F.3d 920 n.14 (9th Cir. 16 2000)).4 The Citizens court further held “that this type of ‘procedural’ injury is tied to a 17 substantive ‘harm to the environment’—‘the harm consists of added risk to the environment that 18 takes place when governmental decisionmakers make up their minds [about the permissibility of a 19 forest management plan] without having before them an analysis (with public comment) of the 20 likely effects of their decision on the environment,’” undermining the statutes purpose to 21 “minimize . . . the risk of uninformed choice.’” Id. (quoting West, 206 F.3d at 930 n.14). The 22 Ninth Circuit held that the plaintiffs did not need to assert that any specific injury would occur in 23 the future because the “‘asserted injury is that environmental consequences might be overlooked’ 24 as a result of deficiencies in the government’s analysis under environmental statutes.” Id. at 971– 25 972 (citation omitted) (emphasis added). Unlike in Summers, the parties in the Citizens case had 26 not settled any disputes regarding particular projects or areas where the plaintiffs had an interest. 27 1 The Ecological Rights court rejected the district court’s strict injury in fact rule, which was 2 based on the proximity of plaintiffs’ places of residence to the affected waterway and the 3 frequency of plaintiffs’ use of the waterway, and instead emphasized that the “‘injury in fact’ 4 requirement in environmental cases is not . . . reducible to inflexible, judicially mandated time or 5 distance guidelines, as Laidlaw makes clear.” Ecological Rights Foundation v. Pacific Lumber 6 Co., 230 F.3d 1141, 1148 (9th Cir. 2000) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 7 528 U.S. 167 (2000)). Indeed, the Laidlaw court simply states that “environmental plaintiffs 8 adequately allege injury in fact when they aver that they use the affected area and are persons ‘for 9 whom the aesthetic and recreational values of the area will be lessened’ by the challenged 10 activity.’” Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 734 (1972). 11 Here, Plaintiffs have sufficiently alleged that they have representational standing based on 12 their lack of information, lack of opportunity to comment, and potential downstream effects 13 Defendants’ failure to revise SARs for the remaining species at issue. Compl. at 10–12. This 14 mirrors the procedural violation which established plaintiff’s standing in Citizens, wherein 15 plaintiffs were deprived of the opportunity to be informed of and comment on environmental 16 assessments despite their right to do so under NEPA’s implementing regulation. Citizens, 341 17 F.3d at 970. Plaintiffs have sufficiently pleaded that they suffered concrete injuries, and will 18 continue to suffer future injuries, as a result of the Service’s failure to comply with mandated 19 procedure when they allege that without up to date stock reports, Plaintiffs and their members 20 cannot use information that would have been in the reports in furtherance of their organizational 21 and professional interests; participate in the public comment process; or comment on and advocate 22 for conservation measures—an activity central to their organizational missions—to the extent they 23 otherwise would; and management decisions critical to a healthy environment will be misinformed 24 and/or less protective. Compl. at 4–5. Plaintiffs’ injuries are unlike those alleged by the plaintiffs 25 in Summers, which were insufficiently concrete to establish standing because they were based on a 26 threat of injury which no longer existed since the plaintiffs had voluntarily settled a separate 27 lawsuit contesting the development of the affected forest region, and because plaintiffs “failed to 1 applied in a manner that will harm that member’s concrete interests.” Summers, 555 U.S. at 1149. 2 In contrast, Plaintiffs here face an ongoing threat of injury because they have alleged their intent to 3 continue the recreational and professional activities which rely on the health of the stocks at issue. 4 Plaintiffs’ injuries are more akin to those in Citizens, which were based on the plaintiffs’ use of 5 the affected forest areas in which they held aesthetic and recreational value, and the risk that those 6 forest areas would be harmed by misinformed forest management decisions. Citizens, 341 F.3d at 7 971. Here, Plaintiffs’ injuries are based in similar interests in the marine mammals and habitats at 8 issue, and the risk that the Service’s failure to review or revise SARs might influence the 9 management decisions intended to protect those marine mammals. Opp’n at 16. 10 Whether Defendants were required by statute to revise these SARs is a separate question 11 going to the merits. For the purpose of constitutional standing, Plaintiffs have sufficiently alleged 12 injury in fact. 13 2. Causation 14 Plaintiffs also sufficiently allege the causation element of Constitutional standing with 15 regard to these stocks. Defendants argue that the Plaintiffs do not adequately allege causation 16 because they “fail to identify any specific management decision that relies on information in 17 SARs, nor any specific activity, that, if permitted, may adversely affect the survival and recovery 18 of the species.” Mot. at 15. Additionally, Defendants argue that the injuries Plaintiffs allege are 19 dependent upon future, discretionary management “decisions which are not challenged and cannot 20 be addressed by this lawsuit.” Id. The Court disagrees. 21 To sufficiently allege causation, plaintiffs must show that their injury is “fairly traceable to 22 the challenged action of the defendant.” Summers, 555 U.S. at 1149. Plaintiffs are not required to 23 “establish causation with the degree of certainty that would be required . . . to succeed on the 24 merits, say, of a tort claim,” but instead must establish the “reasonable probability” that the 25 challenged actions pose a threat to Plaintiffs’ concrete interests. Hall v. Norton, 266 F.3d 969, 977 26 (9th Cir. 2001). That said, causation cannot rest on an overly “attenuated chain of conjecture” or 27 “be too speculative, or rely on conjecture about the behavior of other parties.” See id.; Ecological 1 traced to the defendant’s challenged conduct, rather than to that of some other actor not before the 2 court.” Ecological Rts., 230 F.3d at 1152. 3 Here, Plaintiffs allege that the failure to timely review and revise stock assessment reports 4 directly causes Plaintiffs’ information and procedural injury because without an updated, 5 published SAR, Plaintiffs are unable to view and comment on information to which they would 6 otherwise be entitled to view and comment, related to marine mammals and habitats in which they 7 have specific interests and with which their members regularly interact. Compl. at 5. Plaintiffs 8 also allege that the Service’s failure to keep stock assessment reports up to date directly increases 9 the likelihood that management decisions such as the authorization of take levels, will be 10 misinformed and as a result, less protective of the marine mammals in which they have 11 recreational, conservational, and professional interests. Id. at 4–5. Viewing these allegations in 12 the light most favorable to Plaintiffs, it is reasonably probable that the Service’s alleged failure to 13 comply with its reporting requirements will cause fairly traceable harm to Plaintiffs’ interests 14 because those reporting requirements are intended to aid efforts to conserve and protect the marine 15 mammal stocks at issue under 16 U.S.C. Chapter 31, Subchapter II—Conservation and Protection 16 of Marine Mammals. This link between Defendants’ alleged failure to act and Plaintiffs’ injuries 17 is akin to the link sufficiently alleged in Ecological Rights, where plaintiffs alleged that their 18 recreational waterway use and enjoyment would be impaired due to the risk of pollutant runoff 19 from the challenged upstream development. 230 F.3d at 1151. Plaintiffs’ theory of causation 20 passes the Ecological Rights test insofar as it is the inaction and subsequent management decisions 21 of the named Defendants which would allegedly produce Plaintiffs’ injuries, rather than the 22 speculative actions of a third party. Id. at 1152. This causal chain is unlike that alleged in 23 American Petroleum, in which the plaintiffs failed to show causation because their injury “relied 24 on speculation that particular facilities [who were not parties to the lawsuit] would actually 25 introduce the pollutants into the air.” Id. (citing Am. Petroleum Inst. v. U.S. EPA, 216 F.3d 50, 26 66–68 (D.C. Cir. 2000)). While the causal chain between the failure to revise SARs and actual 27 harm to marine mammals is somewhat more attenuated than causation of Plaintiffs’ inability to 1 . . . need not be so airtight at this stage of the litigation.” Id. 2 Thus, Plaintiffs sufficiently establish a reasonably traceable, plausible link between the 3 Service’s failure to revise SARs for the stocks at issue and Plaintiffs’ resulting representational, 4 procedural, informational injuries. 5 3. Redressability 6 As to redressability, Defendants argue that “Plaintiffs have not sufficiently alleged that the 7 relief they request is ‘likely, as opposed to merely speculative’ to redress any of their alleged 8 injuries” or that “that the Court has the legal ability to grant the requested remedy to compel 9 revised SARs by a date certain for six of the nine stocks.” Mot. at 6. 10 To do sufficiently allege redressability, plaintiffs must allege that their injuries are likely 11 redressable by a favorable judicial decision. Juliana v. United States, 947 F.3d 1159, 1168 (9th 12 Cir. 2020) (citing Laidlaw, 528 U.S. at 180–81). For cases in which procedural injuries are at 13 issue, the redressability element is relaxed. WildEarth Guardians v. USDA, 795 F.3d 1148, 1154 14 (9th Cir. 2015) (citing W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 15 2011)). As a result, plaintiffs with procedural injuries do not need to show, for redressability 16 purposes, that compliance with the procedure at issue allowing the plaintiffs to exercise their 17 procedural rights would necessarily protect their concrete interests, but only that it could do so. 18 Id. (citing Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008)); 19 see also Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001). The Ninth Circuit has 20 held, for example, that ordering the Government to “discharge a statutory procedural requirement 21 . . . [where it] has failed to do so . . . can remedy the defect.” Ctr. for Biological Diversity v. 22 Mattis, 868 F.3d 803, 819 (9th Cir. 2009). The Mattis court also found that the issuance of 23 declaratory relief in procedural injury cases can provide redress, as it would “impose a legal 24 obligation on the Government because a procedural requirement would stand unfulfilled,” and 25 distinguishes that factual scenario from one in which plaintiff seeks a declaration stating that 26 particular aspects of a statute are unconstitutional. Id. (distinguishing Mayfield v. United States, 27 599 F.3d 964, 966 (9th Cir. 2010), on the grounds that the plaintiff there did not assert a 1 that the declaratory judgment sought would not have imposed any legal obligation on the 2 defendant). 3 Here, Plaintiffs seek an order to compel the Service to revise stock assessment reports for 4 all of the species at issue. Compl. at 15. Compliance with the order sought by Plaintiffs is fairly 5 likely to redress Plaintiffs’ injuries because it would both provide them with the up-to-date 6 information they are currently deprived of and allow them to comment on, participate in, and 7 advocate for particular conservation outcomes using that information; as well as better inform the 8 Service’s future management decisions such that the likelihood of excessive takes will be reduced. 9 Id. This is similar to the relief sought in Mattis, where plaintiffs successfully established 10 redressability by seeking compliance with a statute which requires the Government to account for 11 the environmental effects of the construction of a replacement military based prior to its 12 construction, because such compliance had the potential to influence the outcome of the project 13 and potentially mitigate environmental harms. Mattis, 868 F.3d at 818–820. In contrast, the 14 Salmon Spawning plaintiffs unsuccessfully sought compliance with a statute aimed at ensuring 15 that the United States does not enter treaties which jeopardize protected species after the treaty 16 had already been joined, which meant that even if the court “rule[d] in [the plaintiffs’] favor, they 17 will still suffer injury because [the court] cannot undo the Treaty.” Salmon Spawning & Recovery 18 All. v. Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008). 19 Defendants argue, without citation to authority, that such an order falls outside the Court’s 20 power to grant because the “Court cannot order the Service to accept Plaintiffs’ information as the 21 best available scientific information nor compel the Service to make revisions where the Service 22 has not determined that revisions are warranted.” Reply at 14; see Mot. at 16. Unlike unmaking a 23 treaty, which falls outside the scope of a federal court’s constitutional authority, ordering a 24 government agency to complete a report is the sort of relief courts frequently award under the 25 APA, and fails squarely within the power of the judiciary. Whether such relief is warranted here 26 under the terms of the MMPA is a different question, but that goes to the merits of Plaintiffs’ 27 claim, not their constitutional standing to pursue it. 1 requirement to issue revised SARs under at least some circumstances. 16 U.S.C. § 1386(c)(2) (“If 2 the review . . . indicates that the status of the stock has changed or can be more accurately 3 determined, the Secretary shall revise the stock assessment . . . .”); see W. Va. Highlands 4 Conservancy v. Norton, 190 F. Supp. 2d 859, 866 (S.D.W. Va. 2002) (“When a statute or 5 regulation uses the word ‘shall,’ a mandatory duty is imposed upon the subject of the command.” 6 (citing Monsanto, 491 U.S. at 607)). Any failure to allege or prove that those circumstances are 7 satisfied here is, again, a question of the merits, not Article III standing. See Mattis, 868 F.3d at 8 818 (“If the Government has reached its conclusions about effects and mitigation after a sound 9 NHPA Section 402 process, then it has complied with NHPA Section 402; the claim fails not for 10 lack of standing but on the merits.”). 11 Plaintiffs also request the issuance of declaratory relief stating “that the Service is in 12 violation of its non-discretionary duties and that its failure to review and revise the stock 13 assessment reports . . . within the timeframe the MMPA dictates constitutes agency action that is 14 unreasonably delayed and/or unlawfully withheld or arbitrary, capricious, or otherwise not in 15 accordance with the law.” Compl. at 15. As noted above, in cases in which procedural injuries 16 are at issue and a government actor is the defendant, declaratory relief can be sufficient to redress 17 Plaintiffs’ injuries. Mattis, 868 F.3d at 820. Here, like in Mattis, a declaration that Defendants 18 were required to publish revised SARs “would impose a legal obligation on the Government 19 because a procedural requirement would stand unfulfilled.” Id. 20 * * * 21 For the reasons discussed above, Plaintiffs have sufficiently alleged the injury in fact, 22 causation, and redressability elements of Article III standing. 23 C. Plaintiffs Have Not Sufficiently Alleged a Violation 24 Although the Court is satisfied that Plaintiffs have sufficiently alleged standing, they have 25 not sufficiently alleged a violation of Defendants’ duties under the MMPA. As discussed above, 26 the MMPA requires the Service to review stock assessments on an annual or triennial basis, and to 27 revise SARs when those periodic reviews “indicate[] that the status of the stock has changed or 1 manner in which those reviews and revisions are conducted, including that they involve “volunteer 2 “scientific review groups” and consider “the best scientific information available.” See generally 3 16 U.S.C. § 1386. 4 Plaintiffs assert that Defendants failed to complete the required periodic reviews, but aside 5 from a number of passing references that refer to that failure as an assumed fact—e.g., Compl. 6 ¶ 51 (“The Service’s failure to timely review . . . the stock assessment reports . . . violates section 7 117(c) of the MMPA.”)—the only allegation that Defendants failed to do so appears as a brief, 8 unexplained assertion in the “Parties” section of the complaint, lumped together with the alleged 9 failure to revise the SARs, and not identifying which particular reviews should have been 10 completed but were not. Id. ¶ 20 (“The Service has failed to review and revise stock assessment 11 reports for sea otter, polar bear, walrus, and manatee stocks.”). This sort of conclusory assertion, 12 unsupported by factual allegations, does not rise to the level of plausibility required by Iqbal, 13 particularly when the reviews at issue are conducted internally and it is not clear how Plaintiffs 14 might have reached the conclusion that Defendants did not conduct them. To the extent Plaintiffs’ 15 claim rests on a theory that Defendants failed to conduct annual or triennial reviews for any of the 16 stocks at issue, it is therefore DISMISSED with leave to amend.5 17 Plaintiffs more clearly allege that Defendants have not recently revised the SARs for the 18 six stocks that remain at issue, an issue Defendants do not dispute. Plaintiffs have not, however, 19 clearly alleged that the statutory conditions imposing a duty to revise those SARs were met. 20 Instead, Plaintiffs allege that the status of the stocks has in fact changed. Complaint at 10–13. 21 These alleged changes range from threats to the animals’ habitat––credited to the issuance of oil 22 and gas leases and seismic surveys in all at-issue sea otters’ habitats; the impacts of fishing on sea 23 otter mortality and food availability; and climate-change induced changes to the sea otters’, Pacific 24 walrus’, and manatees’ habitat and food availability––to changes in the population estimates for 25 the Pacific walrus stock and increased mortality of manatees due to watercraft activities. Id. 26 5 In their briefs and at the hearing, Defendants asserted that the periodic reviews have been 27 completed. Plaintiffs’ counsel did not indicate at the hearing that they intended to pursue a claim 1 However, because the Service is only required to create a revised SAR “if [its internal review] 2 || indicates that the status of the stock has changed or can be more accurately determined,’—rather 3 than if and whenever the status of any given stock has changed in fact, as Plaintiffs allege— 4 || Plaintiffs’ complaint falls short of alleging that the Service has failed to perform a 5 || nondiscretionary duty under the MMPA. 16 U.S.C. § 1386(c)(2) (specifying the Service’s non- 6 || discretionary duties to review stocks on an annual or triennial basis and to create and publish 7 revised reports as needed). The closest Plaintiffs come to meeting that standard is their allegation 8 that the “Service is aware, or should be aware, that the statuses of these marine mammal stocks 9 || have changed or can be more accurately determined,” Compl. § 40, but even if taken as true, that 10 allegation does not establish that Defendants actually determined from their periodic reviews that 11 the status had changed and revisions were required, or that Defendants failed to complete those 12 || periodic reviews in the manner required by the statute. 13 It is at least conceivable that Plaintiffs could plausibly allege that Defendants actually 14 || concluded either that the status of some or all of these stocks had changed or that the status could 3 15 more accurately be determined. See 16 U.S.C. § 1386(c)(2). It is also conceivable, perhaps in the a 16 alternative, that Plaintiffs could allege facts supporting a plausible conclusion that Defendants 3 17 failed to carry out their periodic reviews in the manner required by the statute, such as by failing to 18 || consider the best available science. The current complaint does not do so. Defendants’ motion is 19 therefore GRANTED, and the complaint is DISMISSED with leave to amend. 20 || IV. CONCLUSION 21 For the reasons above, Defendants’ motion to dismiss is GRANTED. If Plaintiffs believe 22 || they can cure the defects addressed above regarding the stocks for which the Service has not 23 published revised SARs, they may file an amended complaint no later than November 5, 2021. 24 IT IS SO ORDERED. 25 Dated: October 20, 2021 26 6 Ze CZ J PH C. SPERO 27 ief Magistrate Judge 28