Sam E. Mcdowell; John Alsworth; Mary Alsworth, et al.,plaintiffs-appellants, v. United States of America; United States Department Ofinterior; Manuel J. Lujan, Jr., in His Officialcapacity As Secretary of the Interior,defendants-appellees,andkenaitze Indian Tribe and Alaska Federation of Natives,defendants-intervenors, 32 F.3d 572 (9th Cir. 1994)

Before: WIGGINS and THOMPSON, Circuit Judges, and EZRA, District Judge.^* 

MEMORANDUM^** 

Sam E. McDowell and other individuals and organizations appeal the district court's grant of summary judgment against them on their claims challenging the constitutionality of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §§ 3111-3126. ANILCA establishes a preference for subsistence hunting and fishing for rural Alaska residents.

The United States argues that appellants have not shown standing to bring these claims.

"The jurisdictional element of standing must be met in every case, and we must satisfy ourselves that this element exists even if no party to the action raises a doubt regarding its presence." Board of Natural Resources v. Brown, 992 F.2d 937, 945 (9th Cir. 1993) (citing ASARCO, Inc. v. Kadish, 490 U.S. 605, 611 (1989)).

The district court reached the merits of the plaintiffs' claims in ruling on motions for summary judgment. It treated standing as having been established because the allegations of the plaintiffs' complaint were sufficient to survive a motion to dismiss.

At the summary judgment stage of the proceedings, however, "the plaintiff can no longer rest on ... mere allegations, but must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment will be taken as true." Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2137 (1992) (internal quotations and citations omitted). The district court could not reach the merits of the case on summary judgment until standing had been established as a factual matter.

The record is devoid of any evidence to establish the plaintiffs' standing. Without such evidence, summary judgment on the merits could not properly be entered. Accordingly, the district court's summary judgment is vacated and this cause is remanded to the district court for further proceedings. The district court may consider the merits on summary judgment, if affidavits or other evidentiary material on the standing issue are presented to it.

Summary judgment VACATED; cause REMANDED.