Forest Stewardship Council- United States v. Office of the United States Trade Representative

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOREST STEWARDSHIP COUNCIL-
UNITED STATES; CONSERVATION
NORTHWEST; CENTER FOR
BIOLOGICAL DIVERSITY, non-profit
corporations,
Plaintiffs - Appellants,
v.
OFFICE OF THE UNITED STATES
TRADE REPRESENTATIVE; RON
KIRK, U.S. Trade Representative, in his
official capacity; UNITED STATES
DEPARTMENT OF COMMERCE;
GARY LOCKE, Secretary, U.S.
Department of Commerce, in his official
capacity; UNITED STATES CUSTOMS
AND BORDER PROTECTION; JAYSON
P. AHERN, Acting Commissioner, U.S.
Customs and Border Protection, in his
official capacity,
Defendants - Appellees.
No. 09-35985
D.C. No. 2:08-cv-01358-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
FILED
DEC 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Richard A. Jones, District Judge, Presiding
Argued and Submitted November 2, 2010
Seattle, Washington
Before: B. FLETCHER, FERNANDEZ and BYBEE, Circuit Judges.
Appellants challenge the 2006 U.S.-Canada Softwood Lumber Agreement
(“SLA”) on grounds that the Office of the United States Trade Representative’s
(“USTR”) entry into the SLA did not comport with the requirements of the
National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the
Miscellaneous Receipts Act (“MRA”), 31 U.S.C. § 3302. Because we find that
Appellants lack standing to bring their claims, we affirm the district court’s
dismissal of Appellants’ complaint.
To meet their burden of establishing Article III standing, Appellants first
must show that they have suffered an "injury in fact" that is (a) concrete and
particularized and (b) actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). Second, Appellants must establish that the alleged injury is
"fairly traceable" to defendants' conduct. Id. Third, Appellants must establish
redressability by demonstrating “a ‘substantial likelihood’ that the requested relief
will remedy the alleged injury in fact.” Vermont Agency of Natural Res. v. United
States ex rel. Stevens, 529 U.S. 765, 771 (2000).

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Appellants lack standing to bring their NEPA claim because they have failed
to establish redressability. Even if we were to order USTR to conduct a NEPA
analysis, Appellants cannot point to any specific measures USTR can take, short of
renegotiating the SLA, to mitigate any alleged environmental harm. Appellants
argue that a favorable judgment will prompt USTR to “consider” environmental
mitigation measures. But Appellants do not specify what “mitigation” measures
USTR has the power to consider, especially since the alleged conduct harming the
environment, increased logging, is occurring in Canada. Essentially, the best the
Appellants hope for is that a judgment will somehow encourage USTR to
renegotiate the SLA with Canada, even though the court lacks the power to direct
the executive branch's conduct of foreign negotiations directly. Appellants
therefore fail to show how the relief requested will make mitigation of their alleged
injury likely, or even possible. Since we find that Appellants lack standing
because their claim is not redressable, we do not address whether Appellants have
properly established injury in fact or causation.
Appellants also lack standing to bring their claim alleging that the
“meritorious initiatives” payments to designated foundations under the SLA violate
the MRA. They seek a declaration that the payments to be public funds that should
have been deposited into the Treasury in accordance with the MRA. Once again,

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Appellants cannot establish redressability. For a violation of the type Appellants
allege to be redressable, a favorable judgment must be likely to coerce USTR to act
in a way that actually redresses the injury. See Levine v. Vilsak, 587 F.3d 986, 992
(9th Cir. 2009). Even if we were to grant the declaratory judgment Appellants
seek, the funds have either already been paid to the private foundations, or remain
in the hands of the Canadian government. Appellants argue that a favorable
judgment will compel USTR to take actions to recover the funds from the
foundations and the Canadian government, but nowhere do Appellants identify
what these actions might be. Nor do Appellants identify the source of USTR's
authority to sue the Canadian government or the recipients of the funds to recover
the funds. Appellants suggest that the Attorney General can sue the foundations to
recover the money, but the Attorney General is not party to the instant action, and
in any event, any decision by the Attorney General to seek recovery is within his
prosecutorial discretion. Because their failure to establish redressability deprives
Appellants of standing to bring their MRA claim, we need not address Appellants’
injury in fact or causation on this issue.
AFFIRMED.

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