Ycs Investments v. Usfws

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 2021
• Docket: 20-15514
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YCS INVESTMENTS; YOUNGSVILLE No. 20-15514 DEVELOPMENT, INC.; YOUNGSVILLE HOLDINGS, INC.; EDENVALE D.C. No. 4:19-cv-01899-JSW HOLDINGS, INC.,

Plaintiffs-Appellants, MEMORANDUM*

v.

UNITED STATES FISH AND WILDLIFE SERVICE; DAVID BERNHARDT, in his official capacity as Acting Secretary of the United States Department of the Interior; AURELIA SKIPWITH, in her official capacity as Director of the United States Fish and Wildlife Service,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted December 11, 2020 San Francisco, California

Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.

Plaintiffs-Appellants YCS Investments, Youngsville Development, Inc.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Youngsville Holdings, Inc., and Edenvale Holdings, Inc. (collectively, “YCS”)

bring claims against the United States Fish and Wildlife Service (“FWS”) under

the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the

Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., alleging that

FWS’s actions have injured YCS’s conservation interest in the threatened bay

checkerspot butterfly. YCS appeals the district court’s dismissal for lack of

standing. We review “a motion to dismiss for lack of standing de novo, construing

the factual allegations in the complaint in favor of the plaintiffs.” WildEarth

Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting

Mont. Shooting Sports Ass’n v. Holder, 727 F.3d 975, 979 (9th Cir. 2013)).

Because the parties are familiar with the facts, we do not recite them here. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. YCS must plead a concrete and particularized injury sufficient to

establish standing for its four causes of action alleging that FWS violated the ESA

and the APA when it approved the County of Santa Clara’s (“County”) Habitat

Conservation Plan (“Plan”) and issued an Incidental Take Permit (“Permit”) for the

bay checkerspot butterfly in 2013. Salmon Spawning & Recovery All. v. Gutierrez,

545 F.3d 1220, 1225 (9th Cir. 2008) (citing Lujan v. Defs. of Wildlife, 504 U.S.

555, 560–61 (1992)). The Plan covers approximately 460,200 acres of land,

including approximately 2,150 acres of land owned by YCS, and controls

2 construction and development in the area, as well as protection of endangered and

threatened species, including the butterfly.

YCS alleges that errors by FWS in approving the Plan and issuing the

Permit “may result” in the butterfly population on its property “being extirpated.”

YCS cannot show that FWS’s approval of the Plan and issuance of the Permit

caused it any injury, because neither action affected YCS’s ability to conserve its

land or caused a loss of butterfly habitat on that land. YCS does not allege that the

approval of the Plan or the issuance of the Permit has prevented YCS from

continuing its research and study of the butterflies on its land.

While YCS’s payment for third-party research may demonstrate a long-

standing interest in conservation generally, YCS’s alleged injury to its purported

conservation interest is too vague and speculative to establish harm. See Pac. Nw.

Generating Coop. v. Brown, 38 F.3d 1058, 1063 (9th Cir. 1994). YCS has not

pleaded a concrete and particularized injury sufficient to establish standing for its

four claims regarding approval of the Plan and issuance of the Permit. See Salmon

Spawning, 545 F.3d at 1225 (citing Lujan, 504 U.S. at 560–61).

2. YCS has not alleged a cognizable injury for its fifth cause of action

alleging that FWS failed to reinitiate consultation regarding the Plan and Permit

under ESA Section 7. See 16 U.S.C. § 1536; 50 C.F.R. § 402.16. YCS argues that

“new information”—the County’s refusal to permit YCS to build a residential

3 development—requires FWS to reinitiate consultation because the County’s

refusal threatens the butterfly with extinction. However, YCS did not have

approval from the County to develop its land when FWS approved the Plan and

issued the Permit in 2013, and YCS still lacks approval today. The only new

information is YCS’s own decision to stop conserving its land. Because YCS has

itself created the new circumstance alleged, it lacks a cognizable injury for its fifth

cause of action. See 16 U.S.C. § 1536; 50 C.F.R. § 402.16; Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 416 (2013) (self-inflicted harm cannot satisfy standing

requirements).

AFFIRMED.