Keeping Tabs on the Ninth Circuit
September 30, 2022 - This Week at the Ninth

This week at the Ninth: Bull Trout and Claim Preclusion

rainbow trout blog

This week, the Court wrestles with res judicata issues stemming from the dismissal of an Endangered Species Act suit for lack of jurisdiction.

The Court holds that claim preclusion bars plaintiffs from reasserting claims dismissed for lack of jurisdiction for merits-based reasons.

The panel: Judges Hawkins, McKeown, and Sanchez, with Judge Hawkins writing the opinion.

Key highlight: “When they appealed the district court’s original dismissal of their complaint rather than amending, Friends took on the risk that we would affirm and leave the judgment against them intact. Now they must live with the consequences of that choice.”

Background:  In 2015, the Fish and Wildlife Service issued a recovery plan for bull trout, an endangered species. Two plaintiff groups invoked the Endangered Species Act (ESA) and brought suit to challenge that plan. The district court dismissed their claims for lack of jurisdiction, concluding they had failed to identify any Service violation of a “non-discretionary duty.” The Ninth Circuit affirmed that dismissal. The plaintiffs then sought to amend their complaint to add claims alleging such a violation. After the district court denied their motion to amend, the plaintiffs did not appeal. 

Instead, the plaintiffs (now joined by a third group) filed a new complaint challenging the same 2015 recovery plan. The district court rejected the Service’s claim preclusion argument, but subsequently granted its motion for summary judgment, finding that the plaintiffs could not support their claims.

Result: The Ninth Circuit affirmed on claim preclusion grounds. First, the Court rejected the Service’s arguments that the plaintiff groups lacked Article III standing. The Court explained that the plaintiffs had submitted declarations from their members “establish[ing] ongoing aesthetic, recreational, and conservation interests in bull trout,” and that the procedural ESA provisions they alleged were violated “serve to protect these interests.” And, the Court continued, there was “‘some possibility’ that the requested relief—revision of the Bull Trout Recovery Plan—will redress their alleged harms,” as “a new plan may influence the Service’s actions with respect to bull trout conservation.”

But the Ninth Circuit held that claim preclusion barred the plaintiffs’ claims. The Court noted that the requirements of claim identity and privity were satisfied. The sole disputed question was whether the prior litigation had involved “a final judgment on the merits of their claims.” The Court held it had. The Court explained that it had previously accorded claim preclusive effect to similar decisions refusing to allow amendment of a complaint, even if those decisions had not examined the merits of the newly proposed claims. It did not matter that the plaintiffs faced the onerous Rule 60(b) standard at the time they sought leave to amend, as that was simply the result of their own “strategic choices.” And, the Court continued, the district’s initial order dismissing had been on the merits even though it was for lack of jurisdiction: the ESA’s jurisdictional provision requires federal courts to “assess the merits of an ESA claim in order to determine their jurisdiction over it.” The Court concluded that “[d]ismissal for failure to state a claim is a judgment on the merits for purposes of claim preclusion,” even where, as here, the “[t]he consequence of this particular type of failure to state a claim is that this Court lacks jurisdiction over the claims under the citizen-suit provision.”