author: KOZINSKI, Circuit Judge: GOULD, Circuit Judge,

text:
    IN RE BIG THORNE PROJECT and 2008 Tongass Forest Plan, Southeast Alaska Conservation Council; Alaska Wilderness League; Sierra Club; National Audubon Society; Natural Resources Defense Council, Plaintiffs-Appellants, and Cascadia Wildlands; Greater Southeast Alaska Conservation Community; Greenpeace; Center for Biological Diversity; the Boat Company, Plaintiffs, v. United States Forest Service; United States Department of Agriculture; Beth Pendleton, in her official capacity as United States Forest Service Region 10 Regional Forester; Forrest Cole, in his official capacity as Forest Supervisor for the Tongass National Forest; Thomas Tidwell, in his official capacity as Chief of the United States Forest Service, Defendants-Appellees, State of Alaska; Alaska Forest Association, Inc.; Southeast Conference; Viking Lumber Company, Inc.; City of Craig; Icy Straits Lumber Co. Inc.; Southeast Stevedoring Corporation; Alaska Electric Light and Power Company; Alaska Power & Telephone; Alaska Marine Lines, Inc.; Alaska Miners Association; First Things First Foundation; Samson Tug and Barge Company, Inc.; Tyler Rental, Inc.; Resource Development Council of Alaska, Inc.; Southeast Roadbuilders, Inc.; Boyer Towing, Inc.; City of Ketchikan; Ketchikan Gateway Borough; City and Borough of Wrangell; Federal Forest Resource Coalition; First Bank, Intervenor-Defendants Appellees In re Big Thorne Project and 2008 Tongass Forest Plan, Southeast Alaska Conservation Council; Alaska Wilderness League; Sierra Club; National Audubon Society; Natural Resources Defense Council, Plaintiffs, and Cascadia Wildlands; Greater Southeast Alaska Conservation Community; Greenpeace; Center for Biological Diversity; the Boat Company, Plaintiffs-Appellants, v. United States Forest Service; United States Department of Agriculture; Beth Pendleton, in her official capacity as United States Forest Service Region 10 Regional Forester; Forrest Cole, in his official capacity as Forest Supervisor for the Tongass National Forest; Thomas Tidwell, in his official capacity as Chief of the United States Forest Service, Defendants-Appellees, State of Alaska; Alaska Forest Association, Inc.; Southeast Conference; Viking Lumber Company, Inc.; City of Craig; Icy Straits Lumber Col Inc.; Southeast Stevedoring Corporation; Alaska Electric Light and Power Company; Alaska Power & Telephone; Alaska Marine Lines, Inc.; Alaska Miners Association; First Things First Foundation; Samson Tug and Barge Company, Inc.; Tyler Rental, Inc.; Resource Development Council of Alaska, Inc.; Southeast Roadbuilders, Inc.; Boyer Towing, Inc.; City of Ketchikan; Ketchikan Gateway Borough; City and Borough of Wrangell; Federal Forest Resource Coalition; First Bank, Intervenor-Defendants-Appellees. In re Big Thorne Project and 2008 Tongass Forest Plan, Southeast Alaska Conservation Council; Alaska Wilderness League; Sierra Club; Natural Resources Defense Council, Plaintiffs-Appellants, v. United States Forest Service; United States Department of Agriculture; Beth Pendleton, in her official capacity as United States Forest Service Region 10 Regional Forester; Forrest Cole, in his official capacity as Forest Supervisor for the Tongass National Forest; Thomas Tidwell, in his official capacity as Chief of the United States Forest Service, Defendants-Appellees, State of Alaska; Alaska Forest Association, Inc.; Southeast Conference; Viking Lumber Company, Inc.; City of Craig; Icy Straits Lumber Co. Inc.; Southeast Stevedoring Corporation; Alaska Electric Light and Power Company; Alaska Power & Telephone; Alaska Marine Lines, Inc.; Alaska Miners Association; First Things First Foundation; Samson Tug and Barge Company, Inc.; Tyler Rental, Inc.; Resource Development Council of Alaska, Inc.; Southeast Roadbuilders, Inc.; Boyer Towing, Inc.; City of Ketchikan; Ketchikan Gateway Borough; City and Borough of Wrangell; Federal Forest Resource Coalition; First Bank, Intervenor-Defendants-Appellees.
    No. 15-35232, No. 15-35233, No. 15-35244
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 3, 2016, Seattle, Washington
    Filed May 23, 2017

      Holly Anne Harris (argued), Thomas S. Waldo, and Eric P. Jorgensen, Earthjus-tice, Juneau, Alaska, for Plaintiffs-Appellants/Plaintiffs.
    Christopher Winter (argued), Ralph Bloemers, and Oliver Stiefel, Crag Law Center, Portland, Oregon; Gabriel Scott, Cordova, Alaska; for Plaintiffs/Plaintiffs-Appellants.
    Allen M. Brabender (argued), Emily Po-lachek, and David Glazer, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; James Ustasiewski and Kate Baldridge, Office of General Counsel, United States Department of Agriculture; for Defendants-Appellees.
    Richard Goeken (argued), Smith Currie & Hancock LLP, Washington, D.C.; Thomas E. Lenhart (argued), Senior Assistant Attorney General; Craig W. Richards, Attorney General; Office of the Attorney General, Juneau, Alaska; Julie A. Weis, Haglund Kelley LLP, Portland, Oregon; James F. Clark, Law Offices of James F. Clark, Juneau, Alaska; Steven W. Silver, Robertson Monagle and Eastaugh, Reston, Virginia; for Intervenor-Defendants-Appel-lees.
    Before: ALEX KOZINSKI, DIARMUID F. O’SCANNLAIN and RONALD M. GOULD, Circuit Judges.
   OPINION

KOZINSKI, Circuit Judge:

Big Thorne is a logging project in Alaska’s Tongass National Forest. The United States Forest Service approved the logging to help revive the lackluster economy of southeastern Alaska. But the project has been met with howls of protest from the plaintiffs in this case, who claim that Big Thorne unlawfully damages the habitat of an indigenous wolf. The district court dismissed all challenges, and we must now decide whether the Forest Service violated the National Forest Management Act (NFMA) by approving either the Big Thorne project or the 2008 Tongass Forest Plan (Forest Plan) under which Big Thorne was authorized.

FACTS

Big Thorne allows timber to be harvested from Alaska’s Prince of Wales Island. The island, which is the size of Delaware, is the largest in a chain that makes up Alaska’s Alexander Archipelago. Like most of the archipelago, Prince of Wales Island is covered in old-growth rainforest. Big Thorne authorizes logging on nearly 6,200 acres and the construction of more than 80 miles of roads.

Logging and road construction will trench on the habitat of the Alexander Archipelago wolf. This rare wolf preys on a species of deer that thrives in the old-growth rainforest, which provides suitable shelter and forage during periods of heavy snow. A smaller forest will support fewer deer, which, in turn, will support fewer wolves. The new, roads will compound that effect by letting wolf and deer hunters range deeper into the forest.

Concerns about the fate of the wolf are not new. This discrete and insular canine is confined to the islands of the archipelago and surrounding coastline, and is thus sensitive to changes in local habitat. In 1993, environmental groups petitioned to have the wolf listed under the Endangered Species Act. The Fish and Wildlife Service denied the petition, but nonetheless helped convene a team of scientists to prepare a “wolf conservation assessment.” The assessment recommended that the wolf be protected by maintaining the deer population and limiting road density.

The Forest Service used these recommendations in 2008 as the basis for two “standards and guidelines” adopted in the Forest Plan. The first of these—known as the “wolf provision”—encourages the Forest Service to “[pjrovide, where possible, sufficient deer habitat capability to ... maintain sustainable wolf populations” (emphasis added). A sufficient habitat capability “is generally considered to equate to ... 18 deer per square mile.” The second guideline—the “road provision”—provides that “[tjotal road densities of 0.7 to 1.0 mile per square mile or less may be necessary” to protect the wolves (emphasis added).

Even before Big Thorne was approved, the project area had insufficient habitat capability to support 18 deer per square mile, and road densities were above the recommended maximum. The logging project will further reduce deer habitat capability and increase road density.

The Forest Service nevertheless put the welfare of local loggers and their families above that of the wolves, and approved Big Thorne. More concerned with wolves than jobs, plaintiffs filed three lawsuits, pressing a variety of challenges in an attempt to derail the project. The district court consolidated the cases and granted Alaska’s motion to intervene. It then granted summary judgment to the defendants on all claims. Plaintiffs appeal.

DISCUSSION

We consider whether the Forest Service violated the NFMA by approving the Forest Plan or the Big Thorne logging project. This dual inquiry tracks the two tiers of the agency’s legal obligations. First, the NFMA requires that the Forest Service develop “land and resource management plans,” commonly called forest plans, that set broad goals and guidelines for each national forest. 16 U.S.C. § 1604(a), (e), (g); Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). Second, after a forest plan is developed, all subsequent agency actions within that national forest—projects like Big Thorne—must comply with both the NFMA and the relevant forest plan. 16 U.S.C. § 1604(i); see also Lands Council v. McNair, 537 F.3d 981, 989 (9th Cir. 2008) (en banc), abrogated in part on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The Administrative Procedure Act provides our standard of review. We set aside an agency’s actions “only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (internal quotation marks omitted) (discussing 5 U.S.C. § 706(2)(A)).

A. The Forest Plan

1. While “generalized harm” to the environment isn’t enough to supply standing, the Supreme Court has emphasized that particularized harm to “recreational” or even “mere esthetic interests” is sufficient. Summers v. Earth Island Inst., 555 U.S. 488, 494, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). We have previously held that a plaintiff has standing to challenge a “programmatic” agency decision (like a forest plan) when he suffers harm that is “fairly traceable” to that program. See Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1081 (9th Cir. 2015) (internal quotation marks omitted).

Plaintiffs present voluminous declarations amply demonstrating that they are challenging the Forest Plan as a result of specific applications and not, as defendants claim, on its face. The declarants use sites affected by the Forest Plan for fishing, hunting, and to “enjoy the solitude” available only in “remote, undeveloped areas on the Tongass.” Unlike the single individual affidavit before the Supreme Court in Summers, 555 U.S. at 495, 129 S.Ct. 1142—which was inadequate to establish standing—these declarations are sufficient to show that actions approved under the Forest Plan will cause particularized injury to the plaintiffs.

2. The NFMA’s regulations at the time of the Forest Plan required that national forests “be managed to maintain viable populations of existing native and desired non-native vertebrate species.” 36 C.F.R. § 219.19 (2000) (emphasis added). This regulation defined a viable population as one with enough “reproductive individuals to insure its continued existence is well distributed in the planning area.” Id. So our question is whether the Forest Service unlawfully concluded that its Forest Plan would safeguard the continued and well-distributed existence of the Alexander Archipelago wolf.

Some plaintiffs argue that this is the wrong question. They claim that the “wolf provision” of the Forest Plan in fact mandates a “sustainable” wolf population, not merely a viable one. Sustainability is the more demanding standard, and plaintiffs claim that the Forest Service violated its self-imposed obligation by failing to ensure sustainability.

The difference between sustainability and viability is not sharply defined, and is made fuzzier still by the parties, who occasionally conflate the two—as when they refer to “sustaining viable” wolf populations, or repeatedly (if obscurely) ponder the forest’s ability to “sustain wolves.” We need not map the precise contours of these concepts, however, because the Forest Plan provision that mentions sustainability is discretionary: It states only that the Service “[pjrovide, where possible, sufficient deer habitat capability to ... maintain sustainable wolf populations” (emphasis added). This is an aspiration, not an obligation. Because the Forest Service is only obligated to consider sustainability “where possible,” there is no law for us to apply in second-guessing the agency. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (construing 5 U.S.C. § 701(a)(2)). We agree with the district court that the provision gives the Service the kind of “flexibility and discretion” that is consistent with its mission of balancing competing objectives.

Plaintiffs argue that such broad discretion must itself be a problem: If the “sustainability” provision merely expresses an aspiration, the Forest Plan must violate the NFMA by failing to provide any enforceable mechanism for maintaining population mínimums that comply with the viability regulations. The argument appears to be that the Forest Plan must set hard viability mínimums—like deer per square mile—below which the Service may not go.

This argument is neither viable nor sustainable. We’re aware of no authority compelling the agency to set a specific standard or benchmark for protecting the viability of a species that is neither endangered nor threatened. This makes sense when we consider our constellation of federal statutes: The NFMA is fundamentally different from the Endangered Species Act, which has a single-minded focus on protecting species that are near extinction. Because the Alexander Archipelago wolf is not entitled to such protection—despite the best efforts of environmental groups— its treatment is guided by the less animal-friendly NFMA. The NFMA is about managing competing uses, none to the exclusion of others. See 16 U.S.C. § 1604(e).

As the dissent notes, the Forest Plan does incorporate a superseded regulation requiring the agency to “maintain viable populations” of native vertebrate species. See 36 C.F.R. § 219.19 (2000); see also supra note 3. But, contrary to the dissent’s suggestion, we have repeatedly and emphatically stressed that the Service is not required to identify a specific “mechanism” for securing viability. We have rejected the idea that the Service “must assess population viability in terms of actual population size, population trends, or the population dynamics of other species”; even if such methods are desirable, they are flatly “not required.” Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 761 n.8 (9th Cir. 1996). Indeed, we are “especially” deferential “when questions of scientific methodology are involved,” like how to protect viability. Id. at 760. More recently, our en banc opinion in Lands Council v. McNair again made clear that courts may not “require a particular type of proof that a project would maintain a species’ population.” 537 F.3d at 997. Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007) (citation and quotation marks omitted). This rational connection can be supplied with studies or models or experts—or really any legitimate evidence, so long as the agency describes a reasonable fit between its means and ends.

There’s no question that the agency understood and met this obligation. The Record of Decision specifically concludes that the Forest Plan will “sustain viable populations of the Alexander Archipelago wolf.” The Service outlined a multi-part strategy for protecting the wolf, which included “providing core habitats with low road density, maintaining wolf harvest within sustainable limits through regulations, and providing adequate deer habitat to support an abundant and stable deer population.” The Service extensively discussed the management and modeling concerns of alternative forest plans, and concluded that all alternatives had between a “moderately high” and “very high” probability of protecting wolf viability. The Service’s Record of Decision specifically incorporates this discussion, along with a longer discussion in the 1997 Forest Plan. Could the Service’s discussion have been longer, better, or different? Perhaps. But we decline to substitute our own policy wisdom for the agency’s.

In short, the Service met its legal obligations, and plaintiffs’ remaining challenges to the Forest Plan—a potpourri of contentions that the Service misinterpreted one thing or failed to consider another—amount to the sort of quibbling that can’t overcome our deferential standard of review. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). The Forest Service’s discussion of viability wasn’t arbitrary or capricious.

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993-94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs. Congress left such judgments to a politically responsive agency with relevant expertise. See 63C Am. Jur. 2d Public Lands § 86 (2016) (“[T]he proper mix of uses within an area is left to the discretion of the Forest Service.”). Depending on The circumstances, lumber might be more important than wolves. And even when wolves are more important than lumber, it might be better to build fewer roads rather than allow for more deer. Courts are not well-equipped to police the substance of these judgments. Instead, we employ procedural tools: In a nutshell, the agency must rationally explain why it did what it did. Or. Nat. Res. Council Fund, 492 F.3d at 1125. This isn’t the only way to structure a modern administrative state, and its emphasis on procedure will produce results that some despise. But we have an Administrative Procedure Act, not an Administrative Policy Act.

B. The Big Thorne Project

Even if the Forest Service lawfully implemented the Forest Plan, it must also ensure the Big Thorne Project is consistent with that plan. 16 U.S.C. § 1604(i); McNair, 537 F.3d at 989.

Plaintiffs claim the Service failed to do this. But almost all of their arguments proceed from the same false premise as their objections to the Forest Plan—namely, they assume that it’s a sustainable population that counts, rather than a viable one. And the premise is wrong for the same reason: The sustainability provision of the Forest Plan is discretionary. The Forest Service must consider protecting sustainable populations “where possible.” If the Service decides that a sustainable wolf population conflicts with other appropriate forest goals, the Service has discretion to pursue those goals instead.

And that’s just what the Forest Service did. It repeatedly emphasized that it was expanding timber supply from the Tongass in the service of its multiple-use mandate. The Service also pointed out that none of Big Thorne’s proposed land met the Forest Plan’s suggested sustainability minimums; thus, these goals wouldn’t have been met even in the absence of a logging plan. In the end, the Service chose jobs over wolves. We have no authority to second-guess that judgment. See supra pp. 974-75.

Big Thorne’s environmental impact statement does contain scattered references to both sustainability and viability. But plaintiffs are off-base in suggesting that a few scattered references to sustainability—a common term that’s deployed incautiously throughout the record and briefs—can transform the Service’s legal obligation, which is to protect viability alone. To conclude that the Service intended to saddle itself with an extra obligation would require us to overlook the agency’s numerous references to viability in the documents approving Big Thorne— as when it concluded in its impact statement that the plan was “designed to ensure the maintenance of viable populations of all vertebrate species [in] the Tongass by means of a comprehensive approach.”

Because that conclusion accurately described the Service’s legal obligations and was rationally explained, the judgment below is

AFFIRMED.

GOULD, Circuit Judge,

dissenting in part:

I dissent from the portion of the majority’s discussion of the issues relating to the National Forest Management Act (NFMA), and concur in the court’s reasoning concerning the National Environmental Policy Act (NEPA). Hence I join in full both the judgment and the reasoning of the court as presented in the memorandum disposition filed concurrently with the published opinion. But I regret I cannot fully join the NFMA analysis, and hence I respectfully dissent in part.

Addressing the NFMA issues, that statute explicitly serves up for agency action a catalog of potential competing uses of the forest. The agency administering NFMA, the United States Forest Service (Forest Service), is explicitly to consider managing the forests having in mind environmental considerations but also economic considerations. See Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012) (“Forest plans are designed to manage forest resources by balancing the eon-sideration of environmental and economic factors.”); 16 U.S.C. § 1604. One purpose of the NFMA is to encourage conservation of natural resources in our national forests. But another purpose is to support a timber industry that can provide much needed jobs to those living in forested areas in or near our national forests.

It is obvious that once the agency makes a decision in the normal case and gives more weight, for example, to creating jobs than to protecting trees, the scope of review available for a federal court will be extremely limited under the Administrative Procedures Act. We are to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Our review under the Administrative Procedure Act of the agency’s final administrative action is not generally a review of substance or policy, but rather of procedure. As is well-stated by the majority, “we have an Administrative Procedure Act, not an Administrative Policy Act.”

Given that agency action in substance is likely to be upheld when proper procedures are followed, it is all the more important to look carefully at whether the decision of the agency here is procedurally sound. I conclude that it is not.

For one thing, the applicable regulation governing the content of a forest plan, states that viable populations of wildlife in the forests are to be maintained. The NFMA aims to foster diversity of plant and animal communities as part of its mission to meet multiple-use objectives. 18 U.S.C. § 1604(g)(3)(B). The NFMA itself does not say that the wolf species must be maintained at specific numbers and as previously stated, the statute sets out competing potential uses of the forest that must be balanced by the responsible federal agency. The majority poses the issue as a choice between wolves and jobs, but it is not so simple as that.

Although the NFMA does not require viability, the agency has a duty to ensure the viability of surrounding wildlife if it incorporates 36 C.F.R. § 219.19 (2000) into its forest plan. See Ecology Ctr. v. Castaneda, 574 F.3d 652, 657 (9th Cir. 2009). And here, the Forest Service did incorporate the regulation in its forest plan by noting that it is directed “to manage wildlife habitat to maintain viable and well distributed populations to ensure continued existence in the planning area.” By so doing, “the forest plan must comply with substantive requirements of the [NFMA] designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest. ...” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961-62 (9th Cir. 2002). Specifically, 36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” Our law is clear that an agency must abide by its own regulations. See Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 852 (9th Cir. 2003); see also United States ex rel Accardi v. Shaughnessy, 347 U.S. 260, 266, 74 S.Ct. 499, 98 L.Ed. 681 (1954).

Here, the majority is so preoccupied with the issue whether “sustainability” is a discretionary term imposing no restraint on the Forest Service, that it fails to assess adequately whether the remaining population of the Alexander Archipelago wolf will be viable after the project proceeds. A viable population is “one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area.” 36 C.F.R. § 219.19 (2000). There is a difference between a viable population and a sustainable population. The latter must contain a larger number of wolves because it is a population “capable of sustaining harvest.” The Forest Service has recognized this distinction: “[M]inimum viable populations for many species may not satisfy the public need for wildlife populations depended upon to meet subsistence and/or sport hunting uses.”

As quoted above, the language of the regulation states in pertinent part that a population of wildlife in the forest shall be maintained, so that is a “viable” population. It does not matter if the term sustainable population is hemmed in by the discretionary words “if possible.” Instead, what is important is that there is a non-discretionary obligation in the Forest Plan for the Forest Service to maintain a “viable” population of the Alexander Archipelago wolf.

Although the Forest Service concluded that the Forest Plan ensured the viability of the Alexander Archipelago wolf and also concluded that the Big Thorne Project was consistent with the Plan, the Forest Plan and the Big Thorne project do not demonstrate that it will manage old growth habitat in a manner that insures the viability of the wolf in’ well distributed populations throughout the Tongass National Forest. The agency is not obligated to provide a sustainable wolf population, but it must ensure viable wolf populations consistent with its substantive obligation under 36 C.F.R. § 219.19. The Forest Plan presently provides no mechanism to ensure wolf population viability.

For another thing, the agency’s rationale and reasoning process is too summary and conclusory, and fails to deal with the entire problem before it. When the agency opts to protect jobs rather than wolves, it would normally be allowed to make that choice. But the Supreme Court in State Farm elaborated on when 'we should consider an agency’s action to be arbitrary and capricious. The Court stated that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).

That problem is presented here. The agency’s assessment of the plight of the wolves in the Tongass National Forest is in my view inadequate. In the mid 1990s, 250-350 wolves were thought to inhabit the Alexander Archipelago. The Big Thorne project area, located on the Prince of Wales Island, had sufficient habitat to support 45-50 wolves, making up three separate packs and a portion of a fourth pack. A project, funded primarily by the Forest Service, estimated that by fall 2012, only about 29 wolves and only two remaining packs remained in the Big Thorne project area. By spring of 2013, researchers could only account for a mere six to seven wolves left in the project area. Another researcher observed that “numbers seem to indicate that the population of wolves in the central portion of Prince of Wales Island is approaching zero.”

The Alexander Archipelago wolf and the Sitka black-tailed deer, as the Forest Service explained, are closely interrelated. Survival of the wolves depends on survival of the deer on which the wolves feed, which in turn depends on maintenance of the old growth forest habitat on which the deer depends. Deer populations depend on a sufficient quantity, distribution, and quality of winter old-growth habitat. It is inescapable that logging reduces this habitat. The Forest Service, aware that wolves depend on deer for their survival, and that those deer to survive depend on old growth forest habitat, has stressed that maintaining sufficient deer habitat capability, and thus greater number of deer, was “the most important factor” in sustaining wolf viability in the Tongass National Forest. In fact, the destruction of deer habitat capability is, as the agency has explained, “the most important factor limiting wolf viability.” Yet the Forest Plan does not support deer habitat capability numbers, and nothing in the record supports the Forest Service’s contention that viable wolf populations will remain relying on the other two prongs of habitat reserves and wolf mortality management.

Perhaps it cannot be said that the agency could never conclude on the limited evidence that a group of animals will or will not survive as a consequence of forest activities. But here the record is too sparse for definitive conclusion, and what evidence exists in the record shows drastieally decreasing wolf population over the past decades and a project that diminishes deer habitat capability, further threatening the wolves.

I would remand for more proceedings before the district court in which the Forest Service could better explain its reasoning and position relating to threatened habitat needed by the wolves that will be lost if the pending project is approved. I urge the majority to reassess its conclusions, remand for more development of the record and pertinent conclusions, and also give guidance (1) as to the interpretation of the term “viable” in its context; and also (2) on when and under what circumstances the agency would be free to modify its restrictive regulation on viable populations.

Hence I respectfully dissent in part. I would vacate the decision of the Forest Service and remand for its further proceedings, which at a minimum need to include both a thorough assessment of viability of the Alexander Archipelago wolf if the project proceeds, and an explanation of its reasoning sufficient to satisfy State Farm. Perhaps the agency can satisfactorily explain itself. But explain it must do for the decision to be procedurally correct. And who knows, perhaps in going through the rigorous explanation of whether the Alexander Archipelago wolf will continue to exist in viable numbers, the agency may learn more, which could lead it to take some different action more favorable to wolf and human communities. At a minimum, the agency, by explaining itself, will help to fully inform the public about the issues presented in balancing wolf survival, adequacy of deer habitat, and impact on jobs and pertinent communities caused by the final agency action.

      . In response to several renewed petitions, the Fish and Wildlife Service concluded in early 2016 that "listing the Alexander Archipelago wolf is not warranted at this time throughout all or a significant portion of its range, including [Prince of Wales Island].” 12-Month Finding on a Petition To List the Alexander Archipelago Wolf as an Endangered or Threatened Species, 81 Fed. Reg. 435, 435 (Jan. 6, 2016).

      . The district court also dismissed plaintiffs’ claims brought under the National Environmental Policy Act. We dispose of those claims, and several outstanding motions for judicial notice, in a memorandum disposition filed concurrently.

      . This regulation has been superseded. We apply a superseded regulation "only to the extent” it was incorporated into the relevant Forest Plan. Ecology Ctr. v. Castaneda, 574 F.3d 652, 657 (9th Cir. 2009). The Forest Plan, which has not been updated since 2008, does mention the superseded regulation, and the parties don’t dispute that the old regulation applies. Applying the current regulation would not change the result because the new regulation gives Forest Service officials even more leeway to "determine whether or not the plan components ... maintain a viable population of each species of conservation concern within the plan area.” 36 C.F.R. § 219.9(b).

      . The dissent’s focus on population changes on Prince of Wales Island, dissent at 979-80, is puzzling for two reasons. First, the Forest Service's obligation is to protect viability in the Tongass Forest as a whole, not every slice of it—in this case, an island that is less than 10% of the total national forest. Second, the effects of the Big Thorne Project tell us nothing about whether the agency complied with its legal obligations in adopting the Forest Plan many years earlier.

      . Once more, the Service’s obligation is to protect viability in the Tongass National Forest as a whole, not in each individual Tongass project area. Plaintiffs' claims that the Service failed to explain how it would maintain wolf viability in the Big Thorne area thus, once again, misunderstand the Service's obligations.

      . The majority argues that our precedent rejects the idea that the Forest Service needs to identify a "mechanism” to secure viability, and has rejected the idea that viability must be assessed in terms of population size, trends, or dynamics. But the problem here is not that the agency didn't use a particular "mechanism” to assess viability, the problem is rather that the agency just did not really grapple with assessing whether current wolf populations are viable. Nor does the majority.

      . The majority criticizes my specific discussion of the Prince of Wales Island, because it only covers less than 10% of the Tongass National Forest. I do so because the island includes unique, temperate old-growth rainforest habitat, and because deer populations depend on a sufficient quantity, distribution, and quality of winter old-growth habitat.


source: Caselaw Access Project

author: BERZON, Circuit Judge:

license: Public Domain

text:
    Michele SANTOPIETRO, Plaintiff-Appellant, v. Clayborn HOWELL, Las Vegas Metropolitan Police Department Officer, Badge 9034; Kristine Crawford, Las Vegas Metropolitan Police Officer, Badge 10050; Francisco Lopez-Rosende, Las Vegas Metropolitan Police Department Officer, Badge 8864, Defendants-Appellees.
    No. 14-16324
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 8, 2016, San Francisco, California
    Filed May 24, 2017

      Andrew M. Jacobs (argued), Snell & Wilmer LLP, Tucson, Arizona; Kelly H. Dove, Snell & Wilmer LLP, Las Vegas, Nevada; for Plaintiff-Appellant.
    Nicholas Crosby (argued) and Marquis Aurbach Coffing, Las Vegas, Nevada, for Defendants-Appellees.
    Before: MARSHA S. BERZON, and N. RANDY SMITH, Circuit Judges, and DANA L. CHRISTENSEN, Chief District Judge.

      The Honorable Dana L. Christensen, United States Chief District Judge for the District of Montana, sitting by designation.

   OPINION

BERZON, Circuit Judge:

Las Vegas Metropolitan Police Department (“Metro”) officers arrested Michele Santopietro, a street performer, for conducting business without a license on the Las Vegas Strip. We consider the constitutionality of her arrest.

BACKGROUND

I. Santopietro’s Arrest

The various people involved in the incident that led to Santopietro’s arrest provided versions of the events that vary somewhat but, as will appear, are mostly consistent as they relate to the constitutional issues Santopietro raises in this litigation. We recount here both the areas of agreement and those of discord.

Michele Santopietro is an actress who occasionally engages in street performance. On several occasions, Santopietro and her friend, Lea Patrick, traveled to Las Vegas from California and performed together as “sexy cops” on the Las Vegas Strip (the “Strip”).

On May 27, 2011, Santopietro flew to Las Vegas to meet Patrick. The next day, the two women set about presenting their “sexy cop” routine. Less than an hour into their performance they were approached by three Metro officers—Clayborn Howell, Kristine Crawford, and Francisco Lopez-Rosende (together, “Officers”)—who were patrolling the Strip in plain clothes.

Howell spoke first, asking Santopietro and Patrick, “How much does a picture cost?” According to Santopietro, she replied, “It doesn’t cost anything. We just ask for a tip,” to which Patrick added, ‘We pose for tips. Is that okay?” Howell responded, “okay,” posed for a picture with Santopietro and Patrick, and, after Crawford snapped a shot, told the two “sexy cops,” he was “going to go get the money for the tip.”

But he did not. Instead, Howell slowly moved a few steps away from Santopietro and Patrick, offering no payment. Although Patrick reminded Howell, “don’t forget the tip,” none was offered. Patrick reiterated: “You said you would tip,” whereupon Howell made clear that no gratuity was in store. At that point, either Patrick or Santopietro asked Crawford to delete the photo from her camera if Howell was unhappy with it or, according to the Officers, if he was not going to tip. The parties dispute the characterization of the statement, as well as of others assertedly made by Patrick. Specifically, they disagree as to whether the statements were made as polite requests or as “demands”— albeit, the Officers concede, “non-coercive” ones.

Crawford then approached Santopietro and queried, “And what are you going to do to my camera if I don’t give you a tip?” Santopietro’s reply was, “I’m not going to do anything to your camera. I’m not going to touch you. What exactly are you trying to get me to say?” Meanwhile, Howell told Patrick she could not demand a tip, and Patrick responded, “You’re absolutely right, I can’t demand a tip. I just said that you said you would tip.” Patrick also told Howell he had entered into a “verbal agreement” or “verbal contract” to tip her.

Either seconds before or immediately after Patrick mentioned the verbal agreement, Howell lifted his shirt to reveal his Metro badge to Patrick and Santopietro. One or more of the Officers then proceeded to handcuff the “sexy cops.” According to Patrick and Santopietro, just Patrick was handcuffed at first; Santopietro was handcuffed only after she said, “You can’t arrest [Patrick]; she hasn’t done anything wrong.” Crawford agreed with this sequence, testifying in her deposition that Officer Lopez-Rosende, the third Metro officer at the scene, took umbrage at San-topietro’s remark and handcuffed her after she made it.

According to Santopietro, she twice protested, as she was being placed in handcuffs, that she had not said anything to the Officers to justify her arrest. Crawford did not recall Santopietro making such a statement, but she agreed that Lopez-Rosende said something to the effect of, “I’ll tell you right now it doesn’t matter. You’re here doing business together, dressed alike, so you don’t have to say anything.”

Whatever precisely was said and whoever said it, the Officers arrested Santopietro and Patrick for doing business without a license in violation of Clark County Code § 6.56.030. That section provides: “It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same.... ” The charges against Santopietro eventually were dropped.

II. 2010 Memorandum of Understanding

Santopietro and Patrick were by no means the first street performers arrested by Metro officers. Most notably, as a result of repeated arrests and citations made for street performance activities, two street performers sued Metro (and other government entities and officials) in 2009 to prevent similar future arrests and citations, alleging that such enforcement of Clark County Code § 6.56.030 and related ordinances violates the First Amendment.

To settle that suit, the parties, including Metro, agreed to an Interim Stipulated Memorandum of Understanding (“MOU”) in 2010. The MOU (1) specified that the sidewalks and pedestrian bridges along the Strip constitute a traditional public forum; (2) defined “street performer” as “a member of the general public who engages in any performing art or the playing of any musical instrument, singing or vocalizing, with or without musical accompaniment, and whose performance is not an official part of a sponsored event”; and (3) recognized that this court held in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc), “that street performing is expressive speech or expressive conduct protected under the First Amendment.” The MOU went on to provide that “[sjtreet performing, including the acceptance of unsolicited tips and the non-coercive solicitation of tips, is not a per se violation of any of the codes or statutes being challenged in [the] action,” which included Chapter 6 of the Clark County Code. The MOU also recited that “[t]he entirety of Chapter 6 of the Clark County Code, the business licensing codes, as written, is inapplicable to the act of street performing.” At the same time, the MOU cautioned that “[s]treet performers who are legitimately in violation of a county code, state statute, or other law of general applicability are not immune from prosecution simply because they are street performers.”

All three of the defendant Officers in this case had received guidance or training concerning the MOU before Santopietro was arrested. The Officers reported that their principal takeaway from the training was that street performing without a license is not a crime, so long as no “demands” for compensation are made.

III. Procedural History

Santopietro sued Howell, Crawford, and Lopez-Rosende, asserting eleven federal and state causes of action. Invoking 42 U.S.C. § 1983, she alleged violations of her First Amendment free speech rights; Fourth Amendment right to be free from unreasonable search and seizure; and Fourteenth Amendment substantive and procedural due process and equal protection rights. Santopietro also asserted several causes of action based on state constitutional rights. She sought declaratory and injunctive relief, as well as damages for injuries suffered during detention and attorney’s fees. After discovery, the Officers filed a motion for summary judgment. San-topietro filed a cross-motion for partial summary judgment on her § 1983 claim that the arrest violated her First Amendment rights.

The district court granted the Officers’ summary judgment motion and denied Santopietro’s. Concluding that the Officers had probable cause to arrest Santopietro for doing business without a license, the district court maintained that, for that reason, Santopietro’s arrest was in all respects constitutional. In the district court’s view, “the [Ojfficers did not arrest Santo-pietro because she was a street performer who was soliciting tips in a non-coercive manner,” but because the Officers reasonably had determined that “Patrick, and by association, Santopietro[,] were no longer acting as street performers, but ... were conducting business without a license as prohibited by [Clark Cty. Mun. Code] § 6.56.030.” (Emphasis added).

Without addressing any First Amendment concerns, the district court held that “the offense of doing business without a license was completed as soon as Santopie-tro and her partner offered to perform a service in exchange for compensation”; the Officers did not need to wait to “arrest until a tip was demanded several times.” Rather, the district court opined, “it is reasonable for an officer to believe that tipping has become involuntary (and thus coerced) when a street performer reminds someone to tip, demands a tip, and asserts that a verbal contract exists that necessitates payment of a tip.” As the district court recognized, however, none of those actions were completed by Santopietro; only “Patrick engaged in ... [that] kind of conduct.”

Santopietro timely appealed both the grant of summary judgment to the Officers and the denial of her motion for partial summary judgment.

DISCUSSION

Santopietro asserts that at the time of her arrest she was engaged only in fully First Amendment-protected street performance, which includes the non-coercive solicitation of tips. See Berger, 569 F.3d at 1035, 1050. She further maintains that the Officers had no legal basis for arresting her on the basis of Patrick’s statements simply because they were performing together. Moreover, Patrick’s statements, she argues, could not themselves support' probable cause under the applicable municipal ordinance because they (1) did not constitute an “offer” to perform a service, and (2) were constitutionally protected as part of her street performance. For all those reasons, Santopietro contends, the Officers violated her constitutional rights by arresting her.

Taking a similar approach to that of the district court, the Officers argue that they had probable cause to arrest Santopietro for violating section 6.56.030 of the Clark County Code, primarily because of her association with Patrick. It was reasonable to conclude, the Officers maintain, that the two women were engaged in the business of peddling without a license to do so.

I. Constitutional Violation

We consider first the district court’s grant of summary judgment to the Officers and conclude it was in error, because it misconceived the scope of the applicable First Amendment protections.

The pivotal role of probable cause analysis in Fourth Amendment jurisprudence is, of course, well-established. As pertinent here, “a warrantless arrest by a law [enforcement] officer is reasonable ... where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may ... arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). But “[police] may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1020 (9th Cir. 2015) (quoting Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990)). Where no specific criminal statute validly applies to the facts at hand, an arrest is not supported by probable cause.

Our principal question, then, is whether it is constitutionally permissible under the First Amendment to require that a person hold a business license to conduct the activities in which Santopietro was engaged at the time of her arrest. If not, then it was not objectively reasonable for the Officers to believe Santopietro was violating section 6.56.030, as the ordinance did not validly apply to her actions. See Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995). We turn now to that question. We review the district court’s grant of summary judgment to the Officers de novo and construe the facts in the light most favorable to Santopietro. See Fogel v. Collins, 531 F.3d 824, 829 (9th Cir. 2008). In conducting this inquiry, it is helpful to break the relevant facts into digestible parts. The facts available to the Metro Officers at the time of the arrest fall into three categories: Santopietro’s street performance activities; her association with Patrick and Patrick’s acts; and, finally, any other actions Santopietro took in the lead-up to the arrest.

A. Street Performance

Performances on public sidewalks and in public parks—both “traditional public fora”—are protected under the First Amendment as expressive activity. See Berger, 569 F.3d at 1035-36. Although street performances are subject to reasonable time, place, and manner restrictions, id. at 1036, we have never upheld a law that subjects individuals or small groups who wish to engage in non-commercial expressive activity in public fora to advance notice and permitting requirements, see id. at 1039. “[T]he significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.” Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006); see also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1034 (9th Cir. 2009).

The sidewalks along the Las Vegas Strip dedicated to public use are public fora. See Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 943 (9th Cir. 2001). As applied here, Clark County Code § 6.56.030 would have required Santopietro to obtain an individual license or be employed by a licensed business before engaging in her activities on the sidewalks of the Las Vegas Strip. But any such requirement would run squarely afoul of BergeVs central holding, that a permitting scheme that “requires single individuals to inform the government of their intent to engage in expressive activity in a public forum, a requirement that neither we nor the Supreme Court has ever countenanced,” is not permissible. 569 F.3d at 1048. The Clark County ordinance is thus indubitably invalid as applied to Santopietro’s performance as a “sexy cop.” Because of their training regarding the MOU, the Officers understood that.

Additionally, the solicitation of tips is “entitled to the same constitutional protections as traditional speech.” ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Municipalities accordingly may not ban either “passive” solicitation of tips for street performance (e.g., putting a hat out or saying “thank you”), or “active” solicitation (e.g., encouraging a tip orally or by tipping a hat). See Berger, 569 F.3d at 1052. If only “active” solicitation is banned, “an officer seeking to enforce [that] ban ‘must necessarily examine the content of the message that is conveyed.’ ” Id. (quoting Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)). As a content-based regulation of speech in a public forum, such a ban is subject to strict scrutiny, a standard not met by a distinction between active and passive solicitation of voluntary tips. Id. at 1052-53. Metro’s 2010 MOU appears to incorporate that holding, by recognizing that “non-coercive solicitation of tips[ ] is not a per se violation” of the County Code’s business licensing provisions.

If Santopietro’s activities remained within the scope of protected street performance and protected solicitation of tips, then the Officers could not properly arrest her. So the central dispute is whether Santopietro’s actions went beyond protected expression and moved into the realm of business activity subject to Chapter 6 regulations. More specifically, the Officers recognize that both Santopie-tro’s costumed performance and her reply to Howell’s inquiry about the cost of a photo—“It doesn’t cost anything. We just ask for a tip.”—were within the First Amendment’s protections and so were not regulable commercial activity, as both Berger and the MOU established. But, the Officers contend, those actions provide a basis to associate Santopietro with Patrick and Patrick’s statements, which they maintain did go beyond the realm of fully protected speech and were regulable under Chapter 6 of the Clark County Code. We turn, therefore, to whether Santopietro could be arrested, consistently with the First Amendment, not for anything she said or did but because of her association with Patrick.

B. Expressive Association

Because we are examining the grant of summary judgment to the Officers and so construe the facts in the light most favorable to Santopietro, we assume here that Patrick, not Santopietro, asked for the photo to be deleted. We shall also assume for present purposes, without deciding, that Patrick’s alleged “verbal agreement” statement, and perhaps her request that Crawford delete the photograph, established probable cause to believe that Patrick was demanding a fee for service, not a voluntary tip. And we shall finally assume for present purposes, also without deciding, that such a demand, although not coercive in the ordinary sense of that word, would take the quid-pro-quo exchange outside the ambit of fully protected First Amendment expression, such that the exchange itself could be regulated under Clark County Code § 6.56 as commercial speech. Such speech, which “does no more than propose a commercial transaction,” would be subject to the more forgiving First Amendment analysis laid out in Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 100 S.Ct. 2843, 65 L.Ed.2d 341 (1980). See Hunt v. City of Los Angeles, 638 F.3d 703, 715-17 (9th Cir. 2011) (quoting United States v. United Foods, Inc., 533 U.S. 405, 409, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001)).

Under those assumptions, if Patrick’s actions may be imputed to Santopietro for the purposes of establishing probable cause to arrest, the scope of facts available to justify her arrest widens significantly. We conclude, however, that the full First Amendment protections accorded Santo-pietro’s own activities do not lapse because of what Patrick said or did without Santo-pietro’s direct participation. Rather, Santo-pietro and Patrick’s expressive association may not be the sole basis relied upon to attribute Patrick’s actions to Santopietro.

Association for the purpose of engaging in protected activity is itself protected by the First Amendment. “[IJmplicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (collecting cases); see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). This First Amendment right extends only to “expressive association,” that is, to associations “engage[d] in expressive activity that could be impaired” by government action. Boy Scouts of Am. v. Dale, 530 U.S. 640, 655, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).

“Government actions that may unconstitutionally burden this [expressive association] freedom may take many forms.” Id. at 648, 120 S.Ct. 2446. For example, the First Amendment “restricts the ability of the State to impose liability on an individual solely because of his association with another.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918-19, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). It has long been “established that ‘guilt by association alone, without [establishing] that an individual’s association poses the threat feared by the Government,’ is an impermissible basis upon which to deny First Amendment rights.” Healy v. James, 408 U.S. 169, 186, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (alteration in original) (quoting United States v. Robel, 389 U.S. 258, 265, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967)).

These considerations necessarily factor into whether the First Amendment allows arresting an individual engaged in protected expressive activity in conjunction with another person simply because the second person’s behavior crossed the line into actions that may be unprotected and unlawful—or, at least, are less clearly protected and lawful, because they involve commercial speech. Even outside the context of protected First Amendment expressive association, “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Claiborne Hardware and Healy make lucidly clear that the “more” cannot ponsist of inferences of possible criminal involvement based solely on an individual’s First Amendment-protected activities and associations.

In Claiborne Hardware, for example, a local NAACP chapter in Claiborne County, Mississippi, voted to boycott white-owned stores in an effort to put pressure on local elected officials to implement racial justice reforms! 458 U.S. at 889, 102 S.Ct. 3409. Boycott activities occurred between 1966 and 1972. Id. at 893, 102 S.Ct. 3409. Local NAACP leaders encouraged stronger enforcement of the boycott in the wake of a few significant events, including the assassination of Dr. Martin Luther King, Jr., in 1968, and a police shooting of a local black man in his home in 1969. Id. at 901-02, 902 n.31, 102 S.Ct. 3409. Some of the leaders’ words of encouragement included threatening language. Id. at 902, 102 S.Ct. 3409. Additionally, a handful of enforcement actions taken by individual participants in the first year of the boycott had involved violent acts, such as throwing a brick through the window of a car owned by a boycott violator. Id. at 903-06, 102 S.Ct. 3409. In an action brought by white business owners against the NAACP, its local leaders, and more than 100 boycott participants, the Mississippi state courts rejected the defendants’ arguments that their conduct was protected by First Amendment. Id. at 890-91, 895, 102 S.Ct. 3409.

The Supreme Court held that First Amendment protections are not lost “merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.” Id. at 908, 102 S.Ct. 3409. Rather, “the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to ... liability and on the persons who may be held accountable.” Id. at 916-17, 102 S.Ct. 3409 (emphasis added). More specifically, “[fjor liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.” Id. at 920, 102 S.Ct. 3409.

Here, the record indicates the Officers had no evidence before them when they decided to arrest Santopietro that suggested that the “sexy cops” association had any purpose that could have fallen outside the protection of the First Amendment under Berger. Nor was there evidence of Santopietro’s intent to engage with Patrick in anything other than clearly constitutionally protected expressive activity (which, again, includes active solicitation of voluntary tips). Both “sexy cop” performers were engaging largely, if not entirely, in activity that was not only legitimate but also constitutionally protected. The only evidence offered by the Officers on appeal to demonstrate the two women were “working together” is that they “wore the same costumes, portrayed the same ‘sexy cop’ characters, and posed for pictures together”—i.e., evidence of expressive association to engage in street performance. There is no evidence at all, for example, of a prior agreement between the women to require a quid-pro-quo payment for posing in photos, nor of a demonstrated pattern of demanding quid-pro-quo payments during performances together. Thus, on the summary judgment record viewed most favorably to Santopietro, Santopietro associated with Patrick only for expressive activity protected under Berger.

Even if Patrick’s follow-ups to Howell’s initial statements that he would tip or to his later statements that he would not transformed her actions into regulable commercial activity—again, we do not decide that question—they did not transform the street performance association into an unprotected one, any more than the violent action by some participants in the NAACP-led boycott in Claiborne Hardware transformed the entire boycott effort into unprotected activity.

Indeed, were no First Amendment protections at issue, we still very much doubt that a “common enterprise” between Santopietro and Patrick could reasonably be inferred for the purposes of establishing criminal liability. “Individualized suspicion” can, under certain circumstances, be based on an inference of a “common enterprise,” see Maryland v. Pringle, 540 U.S. 366, 372-73, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), but reliance on such an inference would not be reasonable under the facts here.

In Pringle, police pulled a car over for speeding at 3:16 a.m. and seized $763 from the glove compartment and five plastic baggies containing cocaine from the back seat after the driver consented to a search of the vehicle. Id. at 367-68, 124 5.Ct. 795. In addition to the driver, Pringle and one other passenger were in the car at the time of the stop. Id. When questioned about the drugs and the money, none of the men offered any information. Id. at 372, 124 S.Ct. 795. The inference of a common enterprise was held reasonable in Pringle, because “[t]he quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.” Id. at 373, 124 S.Ct. 795. Pringle made clear, however, that “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government ... singles out the guilty person.” Id. at 374, 124 S.Ct. 795 (alteration in original) (quoting United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210 (1948)).

The facts offered to justify the arrests of all three men in the car in Pringle are not present here. At the time of the arrests in this case, the Officers were able to single out who had made the statements they offer as the basis for the arrest. Additionally, unlike inferences that could be drawn from traveling in a vehicle with contraband and evidence of drug dealing, it is unreasonable to assume from the violation at issue here—doing business without a license—that Santopietro would have known about and subscribed to any activity Patrick may have planned or spontaneously decided to undertake.

In sum, to infer from Santopietro and Patrick’s shared costumes and joint performance, alone, an agreement to engage in a regulable transaction impermissibly burdens the right to engage in purely expressive activity and association. We hold that something more than that constitutionally protected activity is required to justify Santopietro’s arrest.

C. Santopietro’s Other Actions

We therefore consider whether there were any actions Santopietro took on her own that fall outside the First Amendment’s protection under Berger. Viewing Santopietro’s activities separately from Patrick’s, we conclude that summary judgment for the Officers was improper as, on the facts most favorable to Santopietro, her actions were entirely protected expression.

The heart of the parties’ disagreement is whether Santopietro engaged only in street performance or also in regulable commercial activity. The evidence presents conflicting accounts regarding (1) which statements Santopietro made, and (2) the nature and tone of the .statements she made.

Santopietro made at least two statements to the officers before her arrest. First, when approached by Howell and asked about the cost of a photo, Santo-pietro said, “It doesn’t cost anything. We just ask for a tip. We pose for tip[s].” Second, when asked by Crawford what she would do to the camera if Crawford did not delete the photo, Santopietro said, “I’m not going to do anything to your camera. I’m not going to touch you. What exactly are you trying to get me to say?” These statements on their own are, at most, active solicitation of tips by a street performer and so, for the reasons already surveyed, an impermissible basis under Berger for arrest.

A third statement is in dispute. Crawford stated in her deposition that Santopie-tro indicated she “wanted” the officers to delete the photo if they were unhappy with it, telling Crawford she “had to delete the picture if [the Officers] didn’t give [the performers] a tip.” (Emphasis added). But Howell stated in his deposition and arrest report that Patrick, not Santopietro, made that demand. Lopez-Rosende deferred to Howell’s version of those facts. Santopietro also contends that she never made any such statement. Further, she asserts that Patrick made no demand directly linking the picture to a monetary payment, but only quietly queried, “if you’re unhappy, would you mind deleting it, then, the picture.”

Construing the facts in the light most favorable to Santopietro, Patrick, not Santopietro, made the comment to Crawford regarding the deletion of the photo. Santopietro’s undisputed statements and actions do not even arguably evidence a business transaction. We need not reach the second factual dispute, regarding the precise import and tone of the statement, to conclude that the district court erred in granting summary judgment to the Officers.

II. Santopietro’s Motion for Summary Judgment

Because Santopietro has appealed the district court’s denial of her motion for partial summary judgment as well as the final order granting summary judgment to the Officers, we consider that denial separately. See Jones-Hamilton Co. v. Beazer Materials & Sews., Inc., 973 F.2d 688, 693-94 (9th Cir. 1992). Viewing the facts this time most favorably to the Officers, we conclude that denial of summary judgment to Santopietro was proper, although Santopietro may well prevail after trial.

Again, genuine disputes of fact remain as to (1) which statements Santopietro made, and (2) the nature of the statements made. Resolving the first question in the light most favorable to the Officers, it was Santopietro, not Patrick, who either asked Crawford to delete the photograph if Howell did not like it, or demanded that she do so if the Officers refused to provide a tip. As to the nature of that statement, on the evidence before us, a reasonable jury could conclude that Santopietro made a “demand” rather than a polite request. If determined to be sufficiently assertive or forceful, and also to link directly to monetary payment, such a quid-pro-quo demand could fall outside protected noncommercial First Amendment activity and support the validity of the arrest based on Santopie-tro’s actions alone.

We note that, like the sale of an artist’s paintings in White v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007), the sale of a snapshot of a performer’s protected street performance is likely protected in itself. Although the “customer” is involved in the process of creating the work at issue here because Crawford took the photo of Howell interacting with the “sexy cops,” there is no dispute that Santopietro and Patrick “applie[d their] creative talents,” Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1062 (9th Cir. 2010), to help create the picture. Thus, assuming full First Amendment protection extends to the expressive work—i.e., to Crawford’s picture of Howell with the “sexy cops” in their performance personae—such protection also applies to the sale of that work. Id. at 1063.

Commercial activities, including quid-pro-quo transactions, however, are not inherently protected under the First Amendment. Rather, “restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct,” and “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). For instance, ordinances “that ban certain conduct associated with solicitation,” such as the physical exchange of money, “do not violate the prohibition on content-based regulation of speech,” even though the solicitation itself is fully protected speech. Berger, 569 F.3d at 1051 (emphasis omitted).

Given that genuine disputes of material fact persist in the record, the district court should not have granted summary judgment to either party. See Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir. 2003). On remand to the district court to review the validity of Santopietro’s arrest under the appropriate First Amendment constraints, the district court—by a jury trial, of course, if properly requested— should first resolve the factual dispute concerning whether Santopietro made the statement regarding deletion of the photo. If she did, the trier of fact should additionally resolve the factual disputes as to the nature of her statement and then determine whether Santopietro’s actions demonstrate a quid-pro-quo offer for services properly subject to analysis as a commercial speech regulation. If so, the district court should conduct that analysis and decide whether the licensing requirement under Clark County Code § 6.56.030 validly applies to the facts as determined.

CONCLUSION

The district court erred by deciding that the Officers had probable cause to arrest Santopietro despite the First Amendment protections afforded to her expressive association with Patrick. We therefore reverse the grant of summary judgment to the Officers. As to the denial of partial summary judgment to Santopietro, we remand for a determination after trial of the disputed factual issues and for consideration in light of this opinion as to whether, on the facts thus determined, Santopietro' was validly arrested for her own statements and actions.

REVERSED, IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

      . Officer Howell's arrest report states that the “females,” without differentiating between them, said, "We work for tips. Is that OK?” In his deposition, Howell clarified that Patrick, not Santopietro, made that statement. The Officers understood the initial statements) regarding posing or working for tips as requesting voluntary tips.

      . Lopez-Rosende did not believe that Howell affirmatively stated he would give a tip, and he denied that the three Officers had agreed on such a communication. Crawford did not know whether Howell agreed to tip but did not dispute Howell’s testimony that he did.

      . Chapter 6 of the Clark County Code defines peddlers as:
      All hawkers, street vendors, and door-to-door sellers of goods, wares, merchandise, or services for immediate performance or delivery, sellers of entertainment or sporting event tickets, mobile food vendors (Chapter 6.130) and traveling manufacturers, but not solicitors or canvassers .... Peddling is complete when offer is communicated to any individual then located within the unincorporated area of Clark County.
      Clark Cty. Mun. Code § 6.56.010. A later subsection makes it "unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a ... peddler, solicitor or canvasser without first having procured a license for the same...." Id. § 6.56.030

      . In her complaint, Santopietro claimed the arrest violated not only her First Amendment rights but also her Fourth Amendment rights to be free from unreasonable seizure. On appeal, she argues only that the arrest violated her rights under the First Amendment, so we limit this opinion to that issue.

      . We later consider whether partial summary judgment should have been entered for Santo-pietro on her First Amendment claim, as she requested. See Part II, infra.

      . Similarly, in ruling that the district court did not misstate the law by instructing the jury that, under certain circumstances, the Fourth Amendment's reasonableness requirement could be satisfied without individualized suspicion, we held in Lyall v. City of Los Angeles, 807 F.3d 1178, 1194 (9th Cir. 2015), that "[i]f a group or crowd of people is behaving as a unit and it is not possible (as it was in Ybarra) for the police to tell who is armed and dangerous or engaging in criminal acts and who is not, the police can have reasonable suspicion as to the members of the group,” id. at 1195. Here, no one was armed and dangerous, the street performers were riot part of a crowd, and the police, who were directly dealing with the two individuals involved, directly observed the behavior of each one.

      . We have held that an association may establish more than “mere propinquity” if there are "some additional circumstances from which it is reasonable to infer participation in criminal enterprise.” United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984). In making such determinations, important considerations include, (1) whether the association is with someone who is known to be engaging in criminal activity and coincides with that criminal activity, and (2) "whether the nature of the criminal activity is such that it could not normally be carried oh without the knowledge of all persons present.” Id.

      The considerations relied upon in Hillison do not justify an arrest here. The Officers do not maintain that, prior to initiating interaction with the women, they had formed any individualized suspicion that either "sexy cop,” whether alone or in association with the other, was engaged in unlawful activity. Rather, the only facts the Officers presented to support Santopietro's arrest were obtained during the Officers’ interactions with the women immediately preceding their arrests. Also, upon approaching the women, the Officers first witnessed the "sexy cops” engage only in First Amendment protected street performance, which included their solicitations of tips. Nothing about the ensuing events suggested any prior agreement or understanding between the women to associate for anything beyond the carrying out of those protected activities.

      . Alternatively, the Officers contended below and, briefly, on appeal that they are entitled to qualified immunity. We determine whether qualified immunity should be granted by construing the facts in the light most favorable to the non-moving party. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per cu-riam). As we have explained, viewing the facts in the light most favorable to Santopietro, it is plain under Berger, 569 F.3d 1029, and the Court’s longstanding freedom of association precedent, that her activities on the record as so construed were fully protected under the First Amendment. No reasonable officer could have inferred otherwise. See Ashcroft v. al-Kidd, 563 U.S. 731, 741-42, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).

      . The license requirement imposed on Santo-pietro’s alleged communication of an offer for the sale of goods or services, see Clark Cty. Mun. Code § 6.56.010-030, may be a valid regulation of commercial speech. See Sorrell, 564 U.S. at 571-72, 579, 131 S.Ct. 2653. As the parties have not addressed whether the peddling ordinance is a valid regulation of commercial speech as applied to the statements made by either "sexy cop,” we do not address the issue.