                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 01 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FOREST STEWARDSHIP COUNCIL-                      No. 09-35985
UNITED STATES; CONSERVATION
NORTHWEST; CENTER FOR                            D.C. No. 2:08-cv-01358-RAJ
BIOLOGICAL DIVERSITY, non-profit
corporations,
                                                 MEMORANDUM *
              Plaintiffs - Appellants,

  v.

OFFICE OF THE UNITED STATES
TRADE REPRESENTATIVE; RON
KIRK, U.S. Trade Representative, in his
official capacity; UNITED STATES
DEPARTMENT OF COMMERCE;
GARY LOCKE, Secretary, U.S.
Department of Commerce, in his official
capacity; UNITED STATES CUSTOMS
AND BORDER PROTECTION; JAYSON
P. AHERN, Acting Commissioner, U.S.
Customs and Border Protection, in his
official capacity,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Richard A. Jones, District Judge, Presiding

                     Argued and Submitted November 2, 2010
                              Seattle, Washington

Before: B. FLETCHER, FERNANDEZ and BYBEE, Circuit Judges.

      Appellants challenge the 2006 U.S.-Canada Softwood Lumber Agreement

(“SLA”) on grounds that the Office of the United States Trade Representative’s

(“USTR”) entry into the SLA did not comport with the requirements of the

National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the

Miscellaneous Receipts Act (“MRA”), 31 U.S.C. § 3302. Because we find that

Appellants lack standing to bring their claims, we affirm the district court’s

dismissal of Appellants’ complaint.

      To meet their burden of establishing Article III standing, Appellants first

must show that they have suffered an "injury in fact" that is (a) concrete and

particularized and (b) actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992). Second, Appellants must establish that the alleged injury is

"fairly traceable" to defendants' conduct. Id. Third, Appellants must establish

redressability by demonstrating “a ‘substantial likelihood’ that the requested relief

will remedy the alleged injury in fact.” Vermont Agency of Natural Res. v. United

States ex rel. Stevens, 529 U.S. 765, 771 (2000).



                                           2
      Appellants lack standing to bring their NEPA claim because they have failed

to establish redressability. Even if we were to order USTR to conduct a NEPA

analysis, Appellants cannot point to any specific measures USTR can take, short of

renegotiating the SLA, to mitigate any alleged environmental harm. Appellants

argue that a favorable judgment will prompt USTR to “consider” environmental

mitigation measures. But Appellants do not specify what “mitigation” measures

USTR has the power to consider, especially since the alleged conduct harming the

environment, increased logging, is occurring in Canada. Essentially, the best the

Appellants hope for is that a judgment will somehow encourage USTR to

renegotiate the SLA with Canada, even though the court lacks the power to direct

the executive branch's conduct of foreign negotiations directly. Appellants

therefore fail to show how the relief requested will make mitigation of their alleged

injury likely, or even possible. Since we find that Appellants lack standing

because their claim is not redressable, we do not address whether Appellants have

properly established injury in fact or causation.

      Appellants also lack standing to bring their claim alleging that the

“meritorious initiatives” payments to designated foundations under the SLA violate

the MRA. They seek a declaration that the payments to be public funds that should

have been deposited into the Treasury in accordance with the MRA. Once again,


                                           3
Appellants cannot establish redressability. For a violation of the type Appellants

allege to be redressable, a favorable judgment must be likely to coerce USTR to act

in a way that actually redresses the injury. See Levine v. Vilsak, 587 F.3d 986, 992

(9th Cir. 2009). Even if we were to grant the declaratory judgment Appellants

seek, the funds have either already been paid to the private foundations, or remain

in the hands of the Canadian government. Appellants argue that a favorable

judgment will compel USTR to take actions to recover the funds from the

foundations and the Canadian government, but nowhere do Appellants identify

what these actions might be. Nor do Appellants identify the source of USTR's

authority to sue the Canadian government or the recipients of the funds to recover

the funds. Appellants suggest that the Attorney General can sue the foundations to

recover the money, but the Attorney General is not party to the instant action, and

in any event, any decision by the Attorney General to seek recovery is within his

prosecutorial discretion. Because their failure to establish redressability deprives

Appellants of standing to bring their MRA claim, we need not address Appellants’

injury in fact or causation on this issue.

      AFFIRMED.




                                             4
