YCS INVESTMENTS v. UNITED STATES FISH AND WILDLIFE SERVICE (2021)

MEMORANDUM *

Plaintiffs-Appellants YCS Investments, Youngsville Development, Inc., 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The Plan covers approximately 460,200 acres of land, including approximately 2,150 acres of land owned by YCS, and controls 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, 112 S.Ct. 2130).

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 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, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (self-inflicted harm cannot satisfy standing requirements).

AFFIRMED.