Friends of the Wild Swan, a non- profit organization; v. Dan Vermillion

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF THE WILD SWAN, a non-
profit organization; et al.,
Plaintiffs-Appellees,
v.
DAN VERMILLION, in his official capacity
as Chairman of the Montana Fish, Wildlife
and Parks Commission; et al.,
Defendants-Appellees,
and
MONTANA TRAPPERS ASSOCIATION;
et al.,
Intervenor-Defendants-
Appellants.
No. 15-35832
D.C. No. 9:13-cv-00066-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted July 14, 2017**
Portland, Oregon
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: WATFORD and OWENS, Circuit Judges, and NAVARRO,*** Chief
District Judge.
Appellants, intervenor-defendants below, appeal from the district court’s
order approving the stipulated settlement agreement and dismissing the case with
prejudice. We have jurisdiction under 28 U.S.C. § 1291, but we dismiss this
appeal for lack of standing.
An intervenor’s right to continue a suit in the absence of the party on whose
side intervention was permitted “is contingent upon a showing by the intervenor
that he fulfills the requirements of Art. III.” Diamond v. Charles, 476 U.S. 54, 68
(1986); see also Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1398–99 (9th
Cir. 1995). To establish Article III standing, a party must demonstrate: (1) an
injury in fact; (2) a causal connection between the injury and challenged conduct;
and (3) that the injury will likely be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
Appellants assert that the settlement agreement precludes them from
meaningfully influencing the regulatory process. This alleged injury is neither
concrete nor imminent and rests on the hypothetical assumption that the Montana
Fish, Wildlife and Parks Commission (the “Commission”) is not acting
*** The Honorable Gloria M. Navarro, Chief United States District Judge
for the District of Nevada, sitting by designation.

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3 15-35832
independently in light of the settlement agreement. See Lujan, 504 U.S. at 560
(stating that an injury in fact must be actual or imminent, not conjectural or
hypothetical). We find that appellants fail to establish an injury in fact under this
theory.
Appellants additionally assert that they were injured by the Commission’s
adoption of the proposed regulatory changes in the settlement agreement. The
settlement agreement, however, only required the Montana Fish, Wildlife and
Parks Department (the “Department”) to recommend the changes to the
Commission, which then had to independently adopt them through a publicly
notified process. Accordingly, we find the chain of causality is too attenuated to
support standing. See Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849,
867 (9th Cir. 2012).
Furthermore, a favorable decision would not redress the appellants’ alleged
injury. A party has no redressability where “any prospective benefits depend on an
independent actor who retains ‘broad and legitimate discretion the courts cannot
presume either to control or predict.”’ See Glanton ex rel. ALCOA Prescrip. Drug
Plan v. AdvancePCS Inc., 465 F.3d 1123, 1125 (9th Cir. 2006). Here, a favorable
decision would not undo the challenged regulations absent independent action
from the Commission. We therefore find that appellants lack standing on appeal.
DISMISSED.

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