                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WILDEARTH GUARDIANS and NEW                      No.   17-16677
MEXICO WILDERNESS ALLIANCE,
                                                 D.C. No. 4:13-cv-00392-DCB
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

UNITED STATES DEPARTMENT OF
JUSTICE,

              Defendant-Appellant,

 and

SAFARI CLUB INTERNATIONAL; et
al.,

              Intervenor-Defendants.



WILDEARTH GUARDIANS and NEW                      No.   17-16678
MEXICO WILDERNESS ALLIANCE,
                                                 D.C. No. 4:13-cv-00392-DCB
              Plaintiffs-Appellees,

 v.

UNITED STATES DEPARTMENT OF

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
JUSTICE,

           Defendant,

NEW MEXICO CATTLE GROWERS’
ASSOCIATION; et al.,

           Intervenor-Defendants,

and

SAFARI CLUB INTERNATIONAL,

           Intervenor-Defendant-
           Appellant.



WILDEARTH GUARDIANS and NEW             No.   17-16679
MEXICO WILDERNESS ALLIANCE,
                                        D.C. No. 4:13-cv-00392-DCB
           Plaintiffs-Appellees,

v.

UNITED STATES DEPARTMENT OF
JUSTICE,

           Defendant,

SAFARI CLUB INTERNATIONAL,

           Intervenor-Defendant,

and

NEW MEXICO CATTLE GROWERS’


                                    2
ASSOCIATION; et al.,

              Intervenor-Defendants-
              Appellants.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted October 9, 2018
                               Seattle, Washington

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      The United States Department of Justice (“DOJ”) and Intervenors Safari

Club International and New Mexico Cattle Growers’ Association appeal the district

court’s order granting summary judgment to WildEarth Guardians and New

Mexico Wilderness Alliance (collectively “WildEarth”). We have jurisdiction

under 28 U.S.C. § 1291, and we vacate and remand to the district court with

instructions to dismiss for lack of standing.

      WildEarth brought claims under the Administrative Procedure Act,

challenging the DOJ’s McKittrick policy as arbitrary and inconsistent with the

Endangered Species Act (“ESA”). Under the McKittrick policy, prosecutors are

directed to request jury instructions with a heightened mens rea requirement in

prosecutions under the ESA, even though this court has already held that a


                                           3
heightened mens rea requirement is not required under the statute. United States v.

McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998). According to WildEarth, this

policy decreases the deterrent effect of the ESA’s prohibition against taking

protected Mexican grey wolves, thereby leading to an increased number of wolf

killings.

       We find that WildEarth lacks standing to bring this challenge. To establish

standing, WildEarth must show (1) a concrete and particularized injury that (2) is

traceable to the challenged conduct and (3) would likely be redressed by a

favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

WildEarth asserts that it and its members are injured by the increased number of

Mexican wolf killings and the McKittrick policy’s adverse impact on Mexican wolf

conservation. The DOJ does not dispute that this constitutes an injury. But even

assuming that WildEarth has suffered a cognizable injury, it has failed to show

both that the injury was fairly traceable to the McKittrick policy and that its

requested relief would actually redress that injury by decreasing the number of

Mexican wolves that are killed.

       WildEarth asserts that without the McKittrick policy, there will be additional

prosecutions of unlawful wolf takings, which will then deter members of the public

from purposefully or accidentally killing wolves. Yet as WildEarth’s counsel


                                           4
acknowledged during argument, WildEarth is not aware of any specific instance

where the DOJ has declined to prosecute a wolf killing because of the McKittrick

policy. The court therefore cannot conclude that eliminating the policy would

trigger additional prosecutions, a greater deterrent effect, and fewer Mexican wolf

killings.

       Moreover, WildEarth’s conclusion necessarily rests upon several layers of

speculation. For example, to find that fewer wolves would be killed in the absence

of the McKittrick policy, the court would, at a minimum, need to speculate about:

how the U.S. Fish & Wildlife Service would allocate its resources and the extent to

which it would investigate and refer wolf shootings to the DOJ; how the DOJ

would prioritize prosecutions of unlawful wolf takings given its own policies and

limited resources; whether individual prosecutors would choose to indict and

prosecute particular cases of wolf killings; whether the circumstances surrounding

any wolf killing would otherwise preclude prosecution (e.g., if the government is

unable to identify the shooter); and the extent to which members of the public

would be aware of the additional prosecutions (especially if there is only a modest

increase) and would change their behavior by shooting fewer wolves. In effect, on

the record before us WildEarth’s contention that eliminating the McKittrick policy

would decrease wolf killings requires speculation about how a series of


                                          5
independent entities would respond to the change. This is insufficient to support

standing under Article III. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 413-14

(2013) (no standing where the court would have to rely on “speculation” or

“guesswork as to how independent decisionmakers will exercise their judgment.”);

see also Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 42-43 (1976) (no

standing to challenge tax change because it is “speculative” whether a court-

ordered reinstatement of tax benefits for indigent services would cause hospitals to

resume providing services to the indigent).

      We therefore vacate the district court’s order granting WildEarth summary

judgment, and remand to the district court with instructions to dismiss WildEarth’s

complaint for lack of standing.

      The parties shall bear their own costs for this appeal.

      VACATED AND REMANDED




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