                                                                       FILED
                            NOT FOR PUBLICATION                         DEC 28 2009

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


                            FOR THE NINTH CIRCUIT



                                                No. 08-35764
 ROZ GLASSER,                                   D.C. No. 2:06-cv-00561-BHS
                 Plaintiff-Appellant,           MEMORANDUM *
   v.

 NATIONAL MARINE FISHERIES
 SERVICE, and BARRY THOM,
 Acting Regional Administrator,
 National Oceanic and Atmospheric
 Administration,
                 Defendants-Appellees,
 and
 CITY OF SEATTLE, and
 WASHINGTON DEPARTMENT OF
 FISH AND WILDLIFE,
                 Intervenors-
                 Defendants-Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                       Argued and Submitted October 16, 2009
                                Seattle, Washington




        *
       This disposition is not appropriate for publication and may not be cited to or by
the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

                                          -1-
Before: RAWLINSON, CALLAHAN, Circuit Judges, and BURNS,** District
Judge.

      The City of Seattle constructed and operates a sockeye salmon hatchery in the

Cedar River watershed, which could incidentally harm two local fish species listed

under the Endangered Species Act. Appellant Roz Glasser (Glasser) sued the

National Marine Fisheries Service (NMFS) and D. Robert Lohn, Regional

Administrator of the National Oceanic and Atmospheric Administration, challenging

NMFS’s approval of the salmon hatchery, its issuance of an incidental take permit

(ITP) and final biological opinion, and the agreement implementing these decisions,

known as the Cedar River Habitat Conservation Plan (CRHCP).

      Among other things, Glasser challenged the adequacy of the administrative

record supporting the CRHCP, and requested that other materials she identified be

added. The City of Seattle then requested that NMFS amend the ITP to exclude the

sockeye hatchery at issue here. The NMFS obliged, which had the effect of

removing the legal protection the City enjoyed under the ITP for violations of the

Endangered Species Act arising out of its operation of the hatchery.

      Glasser then filed a supplemental complaint contending the procedures

required by the Administrative Procedure Act, 5 U.S.C. § 706, were not followed



      **
        The Honorable Larry Alan Burns, District Judge for the Southern District of
California, sitting by designation.


                                         -2-
before the ITP was amended, and the decision to amend the ITP was contrary to the

National Environmental Policy Act. She sought declaratory relief that the law had

been violated, as well as injunctive relief directing NMFS to rescind its removal of

the hatchery from the amended ITP and conservation plan. The district court denied

all relief and dismissed Glasser’s supplemental complaint.

      We affirm. We hold Glasser lacks standing to pursue the claims in her

supplemental complaint. By removing the hatchery from the ITP, NMFS gave

Glasser what she was initially asking for, i.e., the right to sue the City of Seattle

under the Endangered Species Act if it was established that the City was harming the

two listed species through its operation of the hatchery. In contrast, Glasser’s

supplemental complaint alleges only procedural injury, in particular the way the

return to the status quo was accomplished.

      A procedural injury in vacuo is insufficient to support standing. Summers v.

Earth Island Inst., ___ U.S. ___, 129 S.Ct. 1142, 1149–51 (2009) (holding that after

dispute over alleged environmental harm was settled, plaintiff had no standing to

challenge the basis for the allegedly harmful action or pursue a claim for violation of

procedural rights); see also id. at 1153 (explaining that procedural injury without

concrete injury is insufficient to confer standing) (Kennedy, J., concurring). And it

doesn’t make a difference that Glasser may have to pursue another lawsuit against

the City of Seattle if it turns out the hatchery is harmful to the salmon; the


                                           -3-
inconvenience of litigating claims arising from future injuries likewise does not

support standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(holding that an injury in fact sufficient to support Article III standing must be actual

or imminent); Vermont Agency of Natural Resources v. United States ex rel. Stevens,

529 U.S. 765, 773 (2000) (explaining that standing must be based on something

more than the costs of litigating the claim).

      In light of our holding that Glasser lacks standing to challenge the procedure

leading to the amendment of the ITP, we do not reach the issue of whether the

administrative record below was complete or ought to have been supplemented.

Phelps v. Alameida, 569 F.3d 1120, 1127 (9 th Cir. 2009) (holding that, where a

plaintiff lacks standing, federal courts cannot render a decision on the merits of a

dispute).

      AFFIRMED.




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