FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALMON SPAWNING & RECOVERY 

ALLIANCE; NATIVE FISH SOCIETY;

CLARK-SKAMANIA FLYFISHERS,

Plaintiffs-Appellants,

v.

CARLOS M. GUTIERREZ, in his No. 06-35979

official capacity; UNITED STATES

D.C. No. DEPARTMENT OF COMMERCE; D. 

ROBERT LOHN, in his official CV-05-01877-RSM

capacity; NATIONAL OCEANIC AND OPINION

ATMOSPHERIC ADMINISTRATION

NATIONAL MARINE FISHERIES

SERVICE; CONDOLEEZZA RICE, in her

official capacity; UNITED STATES

DEPARTMENT OF STATE,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

April 11, 2008—Seattle, Washington

Filed October 8, 2008

Before: A. Wallace Tashima, M. Margaret McKeown, and

William A. Fletcher, Circuit Judges.

Opinion by Judge McKeown

14321
COUNSEL

Eric Redman, Svend A. Brandt-Erichsen, Kelly B. Fennerty,

Heller Ehrman LLP, Seattle, Washington, for the plaintiffsappellants. 

14324 SALMON SPAWNING & RECOVERY v. GUTIERREZ
Matthew J. McKeown, Acting Assistant Attorney General,

Coby Howell, Ellen Durkee, Mark Haag, Environmental &

Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees. 

OPINION

McKEOWN, Circuit Judge: 

Wild salmon and steelhead, which are listed as threatened

or endangered under the Endangered Species Act, have been

the subject of much litigation in the federal courts. As they

swim back and forth from the Pacific Northwest to Canada,

the fish have no cognizance of an international boundary, or

the Pacific Salmon Treaty of 1999 (“Treaty”), an effort by

Canada and the United States to manage salmon populations

originating in Alaska and the Pacific Northwest. 

This appeal concerns whether three conservation groups

have standing to challenge the decision of federal agencies

and officials to enter into, and remain a party to, that Treaty.

The groups alleged that take levels permitted under the Treaty

have allowed Canadian fisheries to overharvest endangered

and threatened salmon and steelhead. The district court dismissed all three of their claims for lack of standing. We

reverse the district court in part because the groups have procedural standing to bring their third claim for relief. We

affirm the dismissal of the first and second claims. 

BACKGROUND

At the heart of this case are chinook and coho salmon and

steelhead trout populations from Puget Sound, lower Columbia River, and Snake River (collectively, “salmon”). Twentysix populations of these salmon are listed as threatened or

endangered under the Endangered Species Act, 16 U.S.C.

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14325
§ 1531 et seq. (“ESA”). During their lifetime, these fish swim

northward toward waters off the coast of British Columbia

and Alaska, and then journey back through Alaskan and

Canadian waters to return to their rivers of origin, where they

spawn and die. Because of these unusual transboundary

migration patterns, ESA-listed salmon that originate in United

States waters are often caught by commercial and recreational

fishers in Canada before they can make it back to their rivers

of origin. 

In 1985, Canada and the United States entered into the

Pacific Salmon Treaty to manage salmon populations originating in Alaska, Canada, and the Pacific Northwest. That

version of the Treaty set harvest ceilings for fisheries in both

countries. Those ceilings remained constant from year to year.

The ceilings initially proved successful at increasing salmon

survival, but a drought in the early 1990s and poor survival

conditions reversed that effect. In 1992, the Treaty expired.

Unable to work out another agreement, the United States and

Canada went back to managing their respective fisheries independently. 

In 1999, the two countries entered into another Treaty,

which is at the heart of this litigation. In contrast to the 1985

version, a portion of the 1999 Treaty established annual

abundance-based chinook management regimes for fisheries

off the coast of Southeast Alaska, Canada, Washington, and

Oregon. Because Canadian, or “northern,” fisheries harvest

listed salmon in substantially greater numbers than the United

States, or “southern,” fisheries, the Treaty provisions focus

mostly on the take levels of Canadian fisheries. Rather than

setting absolute harvest ceilings that remain unchanged from

year to year, the 1999 Treaty sets annual chinook harvest limits based on pre- and in-season estimates of abundance. 

The Treaty is implemented through the Pacific Salmon

Commission (“Commission”). The Commission collects data

on harvest from the two countries, and then recommends fish14326 SALMON SPAWNING & RECOVERY v. GUTIERREZ
ery management regimes. The Secretary of State of the United

States, in consultation with the Secretary of Commerce and

the Secretary of the Interior, approves or disapproves regimes

that are recommended by the Commission. 16 U.S.C.

§ 3633(a)(2). Only those fishery regimes that are approved by

the Secretary of State under subsection (a)(2) are forwarded

to the states and tribes for implementation. Id. § 3633(b). The

Treaty provisions will expire at the end of 2008, unless the

United States and Canada agree to an extension or modification. 

The United States’ implementation of the Treaty provisions

was conditioned on its compliance with the requirements of

the ESA. Under § 7(a)(2), 16 U.S.C. § 1536(a)(2), federal

agencies must consult with either the National Marine Fisheries Service (“NMFS”) or the Fish and Wildlife Service

(“FWS”) to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened

species.” Formal consultation begins with a written request by

the agency planning to take action (“action agency”), and concludes with the issuance of a biological opinion (“BiOp”) by

either NMFS or FWS as the “consulting agency.” 50 C.F.R.

§ 402.14(c), (l)(1). NMFS or FWS opines in the BiOp

whether the proposed action, taken together with its cumulative effects, is likely to jeopardize the continued existence of

listed species. Id. § 402.14(g)(4). 

If an action is likely to jeopardize a species, the action

agency must determine whether any “reasonable and prudent

alternatives” (“RPA”) exist that will avoid jeopardizing

threatened species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R.

§ 402.14(h)(3). If the BiOp results in a “no jeopardy” finding,

or an RPA is available, NMFS or FWS will issue an “incidental take statement” with the BiOp that exempts the action

agency, and those authorized by it, from the taking prohibition of ESA § 9, 16 U.S.C. § 1536(b)(4). 

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14327
The agency action triggering the ESA § 7 consultation process in this case was the State Department’s decision to enter

into the 1999 Treaty on behalf of the United States. In effect,

NMFS, as the consulting agency, studied whether Canadian

take under the levels permitted by the Treaty would jeopardize listed salmon. NMFS issued a BiOp in which it concluded that Canadian take under the Treaty was not likely to

jeopardize the continued existence of threatened or endangered salmon stocks. Because NMFS made a “no jeopardy”

determination, it had no obligation to identify any alternatives. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14. NMFS

included an incidental take statement to exempt the agencies

from liability under ESA § 9. 

In November 2005, three conservation groups—Salmon

Spawning & Recovery Alliance, Native Fish Society, and

Clark-Skamania Flyfishers1 (collectively “Salmon

Spawning”)—filed this action. Salmon Spawning alleged that

the Department of Commerce, NMFS, the State Department,

and the heads of those agencies in their official capacities,

violated their obligations under ESA §§ 7, 9, and 10, and

§§ 702 and 706 of the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 702 and 706. The conservation groups

challenged the BiOp as flawed, alleged that the federal agencies and officials violated their substantive duties under the

ESA by continuing to implement the Treaty provisions, and

claimed that formal consultation needed to be reinitiated in

light of new information about listed salmon. The groups

noted that in 2005, NMFS issued a BiOp in which it acknowledged that the Canadian harvest of Nooksack River chinook

1Salmon Spawning & Recovery Alliance is a Washington-based group

“dedicated to aiding the recovery of threatened and endangered salmon

populations in the Northwest . . . .” Compl. ¶ 3. Native Fish Society is an

Oregon non-profit corporation “dedicated to the protection and recovery

of native fishes and their habitats in the Northwestern United States[.]” Id.

¶ 4. Clark-Skamania Flyfishers is a Washington non-profit corporation

“dedicated to the preservation of wild fish stocks, including ESA-listed

salmon and steelhead, and the natural resources that sustain them.” Id. ¶ 5.

14328 SALMON SPAWNING & RECOVERY v. GUTIERREZ
is above the rate necessary to rebuild the population. NMFS

also noted in the 2005 BiOp that harvest rates by United

States and Canadian fisheries of Pacific Northwest chinook

from populations other than those at issue were too high to

allow these populations to recover. 

The agencies and officials moved to dismiss the complaint

for lack of standing under Federal Rule of Civil Procedure

12(b)(1), or, in the alternative, for failure to state a claim

under Rule 12(b)(6). The district court ultimately dismissed

the complaint for lack of standing under Article III, concluding that Salmon Spawning failed to show causation and

redressibility. According to the court, the cause of the excessive harvesting was Canadian fishermen, and redress was

speculative because the court could not direct the State

Department to renegotiate the Treaty with Canada. Standing

is a question of law that we review de novo. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th

Cir. 2003). 

ANALYSIS

The broad contours of Article III standing are well known.

We must first decide whether a plaintiff has suffered sufficient injury to satisfy the “case or controversy” requirement

of Article III. Bennett v. Spear, 520 U.S. 154, 162 (1997);

Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).

The plaintiff has the burden of establishing the three elements

of Article III standing: (1) he or she has suffered an injury in

fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable

court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992). 

Statutory standing is the second part of the inquiry. Cetacean Cmty., 386 F.3d at 1175. If a plaintiff has shown sufficient injury to satisfy Article III, but has not been granted

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14329
statutory standing, the suit must be dismissed under Federal

Rule of Civil Procedure 12(b)(6), because the plaintiff cannot

state a claim upon which relief can be granted. Canyon

County v. Syngenta Seeds, Inc., 519 F.3d 969, 975 n.7 (9th

Cir. 2008) (citing Cetacean Cmty., 386 F.3d at 1175). 

I. ALLEGED LEGAL INADEQUACY OF THE BIOP

In the first claim for relief, Salmon Spawning alleged that

the 1999 BiOp authorizing the United States’ entry into the

Treaty was arbitrary and capricious in violation of § 5 of the

APA, and also a violation of ESA §§ 7 and 9. Specifically, the

groups claimed that the BiOp improperly compared only the

Treaty’s effect on harvest rates to harvest rates in the absence

of the Treaty, instead of aggregating the effects of take under

the Treaty, other harvest impacts, and non-harvest impacts;

failed to evaluate the effects of take under the Treaty on the

recovery and survival of listed salmon; evaluated only a fraction of the Puget Sound chinook populations; did not develop

or apply a biologically based target exploitation rate in its

jeopardy evaluation of Upper Willamette chinook; studied

harvest impacts on the strongest components of the Lower

Columbia chinook population, but not the weaker ones; and

failed to analyze or propose reasonable and prudent measures

or alternatives that would force the fisheries to target more

selectively hatchery-origin salmon.2 In short, the conservationists challenge the biological foundation for the Treaty. 

[1] To satisfy the injury-in-fact requirement of the Article

III inquiry, “a plaintiff asserting a procedural injury must

show that the procedures in question are designed to protect

2Many salmon that are born in hatcheries have their adipose fin clipped

prior to their release into the ocean. NMFS recently adopted regulations

to prohibit the take of non-hatchery salmon, i.e., those with an intact adipose fin. 50 C.F.R. § 223.203. The groups point out this distinction

between hatchery-origin and non-hatchery origin salmon to suggest the

ease with which NMFS could implement measures to limit the take of

non-hatchery salmon. 

14330 SALMON SPAWNING & RECOVERY v. GUTIERREZ
some threatened concrete interest of his that is the ultimate

basis of his standing.” Citizens for Better Forestry v. U.S.

Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003) (quoting

Public Citizen v. Dep’t of Transp., 316 F.3d 1002, 1015 (9th

Cir. 2003), rev’d on other grounds, 541 U.S. 752 (2004)

(quoting Cantrell v. City of Long Beach, 241 F.3d 674, 679

(9th Cir. 2001))). The conservation groups alleged in their

complaint that they have various “scientific, educational, aesthetic, recreational, spiritual, conservation, economic, and

business interests” in the salmon. The § 7 consultation procedures in question—for example, the requirements that the

BiOp evaluate both the recovery and survival of listed species, and that RPA or reasonable and prudent measures are

proposed—protect these concrete interests. See 50 C.F.R.

§ 402.02 (defining, for purposes of ESA § 7(a)(2), to “jeopardize the continued existence” of a listed species); 16 U.S.C.

§ 1536(b)(3)(A) (requiring the proposal of RPA if jeopardy is

found). These procedures are designed to advance the ESA’s

overall goal of species preservation, and thus the groups’ specific goals as to salmon preservation, by ensuring agency

compliance with the ESA’s substantive provisions. See Bennett, 520 U.S. at 176. 

[2] A showing of procedural injury lessens a plaintiff’s burden on the last two prongs of the Article III standing inquiry,

causation and redressibility. See Lujan, 504 U.S. at 572 n.7

(stating that the “person who has been accorded a procedural

right to protect his concrete interests can assert that right without meeting all the normal standards for redressibility and

immediacy.”). Plaintiffs alleging procedural injury “must

show only that they have a procedural right that, if exercised,

could protect their concrete interests.” Defenders of Wildlife

v. U.S. EPA, 420 F.3d 946, 957 (9th Cir. 2005) (emphasis in

original), overruled on other grounds by Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2007). It is

at this step of the standing analysis that the conservation

groups stumble. 

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14331
The BiOp considered two proposed agency actions, only

one of which is at issue in this appeal: the “formal commitment of the U.S. to implement its fishery obligations consistent with, and for the duration of, the new PST agreement—

essentially a final U.S. approval of the agreement.”

3

 The BiOp

recognized that, once the United States entered into the

Treaty, “fishing levels in Canada will be set by the provisions

of the agreement for its duration, and cannot be re-visited

except as may otherwise be agreed by both countries.”

(emphasis added). 

[3] The relationship between the BiOp and the Treaty sets

up a dichotomy of interests that sinks the effort to establish

Article III standing for the first two claims; if the groups were

successful in establishing that NMFS failed to comply with

the procedural requirements of ESA § 7 in deciding whether

the United States’ entrance into the Treaty would jeopardize

listed species, the procedurally flawed consultation and defective BiOp could theoretically be set aside. See 5 U.S.C. § 706.

But, a court could not set aside the next, and more significant,

link in the chain—the United States’ entrance into the Treaty.

While the United States and Canada can decide to withdraw

from the Treaty, that is a decision committed to the Executive

Branch, and we may not order the State Department to withdraw from it. See Earth Island Inst. v. Christopher, 6 F.3d

648, 652-53 (9th Cir. 1993) (deciding not to enforce a statute

that required the Executive Branch to negotiate with foreign

nations, as that branch alone has the exclusive power to conduct foreign relations). So, while the groups correctly allege

that they have a right to a procedurally sound consultation,

they cannot demonstrate that “that right, if exercised, could

protect their concrete interests.” Defenders of Wildlife, 420

F.3d at 957.

3The other agency action that was examined by the BiOp was the decision by the North Pacific Fisheries Management Council to continue to

defer its management authority to the State of Alaska. 

14332 SALMON SPAWNING & RECOVERY v. GUTIERREZ
Plaintiffs alleging procedural injury can often establish

redressibility with little difficulty, because they need to show

only that the relief requested—that the agency follow the correct procedures—may influence the agency’s ultimate decision of whether to take or refrain from taking a certain action.

See, e.g., Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768,

779 (9th Cir. 2006). This is not a high bar to meet. But, the

redressibility requirement is not toothless in procedural injury

cases. Here, if a court were to give the groups the remedy that

they seek—that NMFS and the State Department follow the

proper procedures during a new § 7 consultation process—the

ultimate agency decision of whether to enter into the Treaty

with Canada, made nine years ago, could never be influenced.

In effect, if we rule against the groups’ claim of procedural

injury, they will continue to suffer injury; and, if we rule in

their favor, they will still suffer injury because we cannot

undo the Treaty. Cf. id. That the BiOp authorized the United

States to enter into a Treaty with a foreign sovereign “foreclose[s] our ability to provide effective relief.” Id.

[4] Perhaps recognizing their redressibility quandary, the

conservation groups assert that the BiOp authorized agency

actions broader than the State Department’s entrance into the

Treaty.4 But, this semantic attempt to turn the BiOp into a

freestanding basis for relief fails. The agency action that the

BiOp authorized was the United States’ entrance into the

Treaty. And, although we can set aside the BiOp, we cannot

remedy the harm asserted. We affirm the district court’s dismissal of the first claim for lack of standing. 

4For example, the groups suggest that the BiOp authorized the federal

agencies to seek out and implement additional conservation measures,

required them to monitor Treaty fisheries, and assigned them ongoing

roles in implementing the Treaties. 

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14333
II. THE AGENCIES’ CONTINUED IMPLEMENTATION OF THE

TREATY

[5] In its second claim for relief, Salmon Spawning asserted

that the agencies’ and officials’ continued participation in the

implementation of the Treaty jeopardized listed salmon in

violation of ESA § 7(a)(2), and that such participation was

arbitrary and capricious in violation of the APA. Section

7(a)(2) confers upon agencies that are considering discretionary actions an affirmative “do-no-harm obligation” when their

actions could cause harm to an endangered species. Defenders

of Wildlife, 420 F.3d at 965. This duty is separate from an

agency’s responsibility to comply with the procedures

required by § 7. See id. at 957 (noting that a plaintiff may

allege both procedural and substantive violations of the ESA).

In other words, even if an action agency has satisfied the

ESA’s consultation requirements, a court may conclude that

the agency has not complied with its substantive duty to avoid

jeopardy. Id. So, in contrast to its first claim, which focused

on alleged procedural flaws that occurred during the preTreaty consultation process, Salmon Spawning’s second

claim challenges the agencies’ decision to continue allowing

excessive Canadian harvesting now that the United States is

a party to the Treaty. 

Even assuming that Salmon Spawning meets the injury-infact requirement—by asserting that its scientific, educational,

aesthetic, recreational, economic, and business interests in the

listed species will continue to be harmed by the failure to correct overharvesting by the Canadians—a more difficult question is whether the groups have established causation and

redressibility with respect to this claim. To show causation,

the plaintiff must demonstrate a “causal connection between

the injury and the conduct complained of—the injury has to

be fairly traceable to the challenged action of the defendant,

and not the result of the independent action of some third

party not before the court.” Lujan, 504 U.S. at 560-61 (quot14334 SALMON SPAWNING & RECOVERY v. GUTIERREZ
ing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26,

41-42 (1976) (internal quotation marks omitted)). 

[6] In the complaint, Salmon Spawning alleged that the

groups’ injury is caused by the United States’ continued

implementation of the Treaty, without exercising the authority

to withdraw from the Treaty or requesting additional conservation measures to benefit listed salmon. On these allegations

alone, the district court properly concluded that causation was

lacking. The excessive harvesting permitted under the Treaty

is not fairly traceable to the United States’ failure to withdraw

from the Treaty. If the United States withdrew, the harvesting

of listed species would arguably increase, because the Treaty

set abundance-based limits on the Canadians’ take. The overharvesting is also not fairly traceable to the agencies’ failure

to ask the Canadians to take additional conservation measures. Although the Canadians, if asked, might agree to

require a reduction in their fisheries’ take, they could also

refuse to accommodate the United States’ request. If we consider only these grounds as the bases for establishing causation, the “causal connection” put forward by the conservation

groups relies on an “attenuated chain of conjecture” insufficient to support standing. See Ecological Rights Found. v.

Pacific Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000). 

But, on appeal, the groups have focused on a different

ground to illustrate their injury: the ability of the federal agencies to limit the take of United States fisheries.5

 They argue

that because the agencies can limit the take of United States

5The groups admitted at oral argument that they migrated from their

focus in district court on reducing the take of Canadian fisheries, to a position that United States fisheries should reduce their take and thus offset the

Canadians’ take. A plaintiff’s basis for standing must “affirmatively

appear in the record.” Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 546 (1986). The allegation in the complaint that the defendants failed

to “request additional conservation measures to benefit ESA-listed salmon

populations” is marginally broad enough to include measures that could be

taken by either Canada or the United States. 

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14335
fisheries and thus offset the effects of Canadian harvesting,

the failure to take such action while permitting Canadian

overharvesting under the Treaty violates the ESA. 

Though we are dubious about this proposition for purposes

of causation and we are not inclined to read the complaint so

broadly as to encompass an entirely new theory of causation,

even if we were to credit this argument, redressibility poses

an upstream battle. Salmon Spawning argues that a court

order declaring that the agencies and officials violated the

ESA and APA would require the defendants to exercise their

authority to reduce the take of United States fisheries. We are

not persuaded. According to Salmon Spawning, if we

declared that the agencies violated their ESA obligation to

avoid jeopardy, that would leave it “up to Defendants to

determine whether . . . negotiations with Canada—or changes

in U.S. fisheries—are needed to meet their obligations under

the ESA.” This argument highlights the key difference

between asserting substantive and procedural violations of the

ESA: a plaintiff alleging procedural violations of the ESA

must show only that the procedural right could protect their

interest, whereas a plaintiff alleging a substantive violation

must demonstrate that its injury would likely be redressed by

a favorable court decision. 

[7] For much the same reason as the first claim fails, this

claim hinges on agency action vis-a-vis the Treaty. The court

cannot order renegotiation of the Treaty, and discretionary

efforts by the agencies are too uncertain to establish redressibility. That a favorable judicial decision would leave matters

to the discretion of the State Department and NMFS makes

equally likely the possibility that the agencies would decide

to take no “agency action” with respect to Canada’s fisheries

—so as not to be constricted by § 7’s “no jeopardy”

requirement—as the possibility that they would renegotiate a

Treaty that would more aggressively limit the Canadians’

take. Because Salmon Spawning has failed to show redressi14336 SALMON SPAWNING & RECOVERY v. GUTIERREZ
bility, we affirm the district court’s dismissal of the second

claim for relief. 

III. THE AGENCIES’ FAILURE TO REINITIATE CONSULTATION

[8] Salmon Spawning also alleged that the State Department and NMFS were obligated by ESA § 7 and its implementing regulations to reinitiate consultation on the 1999

BiOp. Consultation under § 7 must be reinitiated where

(a) discretionary federal involvement or control has been

retained or authorized; and (b) the amount or extent of taking

specified is exceeded, new information reveals effects that

may affect listed species or critical habitat in a manner not

considered, the action is subsequently modified so as to cause

an effect to the listed species or critical habitat not previously

considered, or a new species is listed or critical habitat designated. 50 C.F.R. § 402.16. The duty to reinitiate consultation

lies with both the action agency and the consulting agency.

See id.

[9] According to Salmon Spawning, since the BiOp was

issued in 1999, new criteria developed by NMFS show that

the Canadian harvest is taking more Puget Sound chinook

than the BiOp anticipated; new data shows the amount and

extent of the Canadian harvest of ESA-listed salmon; NMFS

has changed the definition of salmon evolutionary significant

units since 1999, such that almost three quarters of the salmon

caught in some Canadian fisheries are ESA-listed; and it is

now possible to differentiate between hatchery-origin salmon

and listed salmon. 

[10] These claims alleged sufficient injury to satisfy the

“case or controversy” requirement of Article III. With respect

to injury in fact, Salmon Spawning claims that the State

Department and NMFS violated the procedural requirements

of § 7 by failing to reinitiate consultation in light of new

information. The requirement that consultation be reinitiated

protects a “concrete threatened interest” that is the basis of

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14337
Salmon Spawning’s standing, the avoidance of harm to listed

species. Citizens for Better Forestry, 341 F.3d at 969-70. 

Because Salmon Spawning has properly alleged procedural

injury, as noted earlier, causation and redressibility are

relaxed. Lujan, 504 U.S. at 572 n.7. That it is uncertain

whether reinitiation will ultimately benefit the groups (for

example, by resulting in a “jeopardy” determination) does not

undermine their standing. Cantrell, 241 F.3d at 682. The

asserted injury is not too tenuously connected to the agencies’

failure to reinitiate consultation. And a court order requiring

the agencies to reinitiate consultation would remedy the harm

asserted. Unlike the other claims, this claim is a forwardlooking allegation whose remedy rests in the hands of federal

officials and does not hinge on upsetting the Treaty. 

[11] Salmon Spawning also meets the requirements for statutory standing under the ESA and the APA. The ESA’s

citizen-suit provision authorizes the groups to bring suit

against the State Department, as the action agency, for failure

to comply with its ESA obligations. 16 U.S.C.

§ 1540(g)(1)(A). As for standing under the APA, the failure

to reinitiate § 7 consultation is a final agency action subject

to judicial review. See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001). The conservation groups’ interests in the protection of listed salmon are

within the zone of interests to be protected by the ESA regulation requiring reinitiation. See id.

[12] Finally, Salmon Spawning has established associational standing. Public Citizen, 316 F.3d at 1019. Each of the

conservation groups’ members has standing to sue individually; the interests the groups seek to protect are germane to

their purposes as conservation organizations; and neither the

claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Id. Therefore,

we reverse the district court’s dismissal of Salmon Spawn14338 SALMON SPAWNING & RECOVERY v. GUTIERREZ
ing’s third claim for lack of standing and remand for further

proceedings.6

The judgment of the district court is affirmed in part,

reversed in part, and remanded. We remand to the district

court to determine whether attorneys’ fees under the Equal

Access to Justice Act, 28 U.S.C. § 2412, should be granted.

Each party shall pay its own costs on appeal. 

AFFIRMED in part, REVERSED in part, and

REMANDED.

6The agencies and officials moved to dismiss in the alternative for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

Because the motion to dismiss targeted standing, Salmon Spawning did

not focus on this argument below, nor did the district court rule on it. This

issue was not briefed on appeal. Therefore, we decline to pass on the merits of the motion to dismiss and remand to the district court for further proceedings. We offer no opinion whether Salmon Spawning has stated a

claim for relief. 

SALMON SPAWNING & RECOVERY v. GUTIERREZ 14339