1 of 15 documents united states code service

11. Miscellaneous

Designation of spotted owl as endangered species does not require remand of case challenging timber sales in which it had been held that environmental impact statement conformed with NEPA. Headwaters, Inc. v Bureau of Land Management Medford Dist. (1991, CA9) 940 F2d 435, 91 CDOS 5763, 91 Daily Journal DAR 8893, 21 ELR 21237.

First phase of construction of project was immune from reconsultation requirement where, although Fish and Wildlife Service had proposed placing red squirrel on endangered list, Service had not made final decision by date project was begun. Mount Graham Red Squirrel v Madigan (1992, CA9 Ariz) 954 F2d 1441, 92 CDOS 775, 92 Daily Journal DAR 906, 21 FR Serv 3d 1301, 22 ELR 20391, appeal after remand sub nom Mount Graham Red Squirrel v Espy (1993, CA9 Ariz) 986 F2d 1568, 93 CDOS 1525, 93 Daily Journal DAR 2800, 23 ELR 20691, subsequent app sub nom Apache Survival Coalition v United States (1994, CA9 Ariz) 21 F3d 895, 94 CDOS 2469, 94 Daily Journal DAR 4698, 24 ELR 20854, subsequent app sub nom Mount Graham Coalition v Thomas (1995, CA9 Ariz) 53 F3d 970, 95 CDOS 3192, 95 Daily Journal DAR 5213, 40 Envt Rep Cas 1851, 25 ELR 20904, subsequent app (1996, CA9 Ariz) 96 CDOS 4491, 96 Daily Journal DAR 6956, amd on other grounds (1996, CA9) 96 CDOS 5427 and amd on other grounds (1996, CA9 Ariz) 89 F3d 554, 96 Daily Journal DAR 9093, 27 ELR 20218, subsequent app (1997, CA9 Ariz) 108 F3d 1100, 97 CDOS 1740, 97 Daily Journal DAR 3265, subsequent app (1997, CA9 Ariz) 118 F3d 663, 97 CDOS 5231, 97 Daily Journal DAR 8486, 27 ELR 21209.

Forest Service violated § 7 of Endangered Species Act, 16 USCS § 1536, when it failed to re-initiate consultation with Fish and Wildlife Service after it failed for several years to adequately monitor cattle grazing on plot of national forest land; although it initiated informal consultation, action was not moot and declaratory judgment was appropriate in environmental group's 16 USCS § 1540(g) action against it because such judgment would govern Forest Service's actions for remainder of grazing permit period. Forest Guardians v Johanns (2006, CA9 Ariz) 450 F3d 455, 36 ELR 20109.

Animal defense group's challenge to proposed transfer of lowland gorilla between zoos for purposes of mating must be dismissed with prejudice, where federal law completely occupies field of interstate commerce in gorillas, because Animal Welfare Act (7 USCS §§ 2131 et seq.) does not provide for private suits to enforce its terms, and group failed to comply with mandatory prerequisite to claim brought under 16 USCS § 1540(g)(1)(A)--60 days' notice to Interior Secretary and alleged violator. In Defense of Animals v Cleveland Metroparks Zoo (1991, ND Ohio) 785 F Supp 100.

Recreation groups' action against EPA under 5 USCS § 704 must be dismissed, where they claim EPA was obligated to consult with Interior and Commerce Secretaries before approving various "clean water" actions by state to insure that such actions did not jeopardize any endangered or threatened species, because 16 USCS § 1540(g)(1)(A) provides cause of action for concerned citizens, precluding Administrative Procedure Act (5 USCS §§ 701 et seq.) action. American Canoe Ass'n v United States EPA (1998, ED Va) 30 F Supp 2d 908, 47 Envt Rep Cas 2100, 29 ELR 20383 (criticized in Save the Valley, Inc. v United States EPA (2002, SD Ind) 223 F Supp 2d 997, 55 Envt Rep Cas 1171) and (criticized in Wilderness Soc'y v Norton (2005, DC Dist Col) 2005 US Dist LEXIS 18734) and (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).

Where home builders failed to show that they had been subjected to adverse action as result of Fish and Wildlife Service's protocols (which district court determined were not "rules" under Administrative Procedure Act) for determining presence of quino checkerspot butterfly, matter was not ripe for litigation because no facts had been developed to resolve issue and home builders lacked standing for failure to show any injury. Nat'l Ass'n of Home Builders v Norton (2003, DC Dist Col) 298 F Supp 2d 68, 58 Envt Rep Cas 1455, affd (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143.

Plan for mitigation of incidental taking of endangered species was upheld where Fish and Wildlife Service could rationally conclude that plan would improve habitat and enhance survival of species alleged to be at risk. Nat'l Wildlife Fed'n v Norton (2004, ED Cal) 306 F Supp 2d 920, 58 Envt Rep Cas 1618.

Administrative Procedure Act (APA) does not provide cause of action where adequate remedy at law is otherwise provided; APA did not provide cause of action to environmental groups seeking to enforce provisions of Endangered Species Act (ESA) because ESA contained citizen suit provision, which allowed them to sue for injunctive/declaratory relief for Department of Interior's failure to take action required by ESA, and such provision provided adequate remedy at law to environmental groups. Cal. Native Plant Soc'y v Norton (2004, DC Dist Col) 311 F Supp 2d 9.

Non-profit environmental organizations could not obtain relief under Administrative Procedure Act for government officials' failure to designate critical habitat for two endangered minnow species because Endangered Species Act provided exclusive remedy for such failure. Ctr. for Biological Diversity v Hamilton (2005, ND Ga) 385 F Supp 2d 1330.

Because Secretary of Department of Interior is unequivocally required to designate critical habitat unless doing so would not be prudent, Secretary's duty under law continues until final regulation is published, thus, even if plaintiff's right of action was to have accrued when deadline passed and statute of limitations expired in six years under 28 USCS § 2401, Secretary's violation is ongoing and does not constitute discrete one-time violation with lingering effects or consequences; continuing violation doctrine applies to such instances. Schoeffler v Kempthorne (2007, WD La) 493 F Supp 2d 805 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).

Because defendant Secretary of Department of Interior proposed Louisiana Black Bear's critical habitat several times for decade without ever making final habitat listing or "not prudent" determination, his only two options under 16 USCS § 1533, plaintiff environmentalist's suit to compel action was not time barred by 28 USCS § 2401(a)'s six year limitations period. Schoeffler v Kempthorne (2007, WD La) 493 F Supp 2d 805 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).

Although group attempted to bring its claims pursuant to Administrative Procedure Act (APA), 5 USCS § 702, as alternative to Endangered Species Act, 16 USCS §§ 1533 et seq., relevant provision of APA provided that person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within meaning of relevant statute, was entitled to judicial review thereof and allowed court to order injunctive or declaratory relief; however, APA jurisdiction was dependent upon lack of alternative adequate remedy, and because ESA "citizen suit" provision provided group with adequate remedy, 16 USCS § 1540(g)(1), group's claims under APA were dismissed. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.

II.CITIZEN SUITS 12. Jurisdiction

Court of Appeals has exclusive jurisdiction over any suit challenging final actions of Bonneville Power Administration; thus, district court properly dismissed suit brought against Administration by environmental groups under Endangered Species Act. Northwest Resource Info. Ctr. v National Marine Fisheries Serv. (1994, CA9 Wash) 25 F3d 872, 94 CDOS 4035, 94 Daily Journal DAR 7545, 39 Envt Rep Cas 1613, 24 ELR 21117.

District Court erred in refusing to abstain and in granting environmental organization preliminary injunction regulating withdrawal of water from aquifer that fed spring at which endangered species lived, where matter was one of great state concern and state had enacted regulatory scheme to control and manage aquifer. Sierra Club v City of San Antonio (1997, CA5 Tex) 112 F3d 789, 44 Envt Rep Cas 1982, 27 ELR 21051, reh, en banc, den (1997, CA5 Tex) 118 F3d 1580 and cert den (1998) 522 US 1089, 139 L Ed 2d 868, 118 S Ct 879, 46 Envt Rep Cas 1576.

District court properly dismissed for lack of subject matter jurisdiction environmental group's action against Federal Communications Commission under 16 USCS § 1540(g), citizen-suit provision of Endangered Species Act (ESA); group could not elude exclusive review provisions under 47 USCS § 402(a) of Communications Act of 1934, 47 USCS §§ 151 et seq., and under Hobbs Act, 28 USCS § 2342, by disguising its true objection to seven communication tower registrations in Hawaii as failure to act under ESA. Am. Bird Conservancy v FCC (2008, CA9 Hawaii) 545 F3d 1190, 67 Envt Rep Cas 1833, 38 ELR 20257.

Court of International Trade was without jurisdiction to issue order enforcing its judgment that State Department's regulations invalidly limited scope of ban on shrimp imports taken without turtle excluder devices to "wider Caribbean region" where plaintiff environmental group unilaterally and unconditionally withdrew its motion to enforce judgment 18 days prior to Court's order. Earth Island Inst. v Albright (1998, CA FC) 147 F3d 1352, 20 BNA Intl Trade Rep 1193, 28 ELR 21421.

16 USCS § 1540(g)(3)(A) is venue provision only; if personal jurisdiction exists, it must be asserted on basis of state long-arm statute. Colorado River Water Conservation Dist. v Andrus (1979, DC Colo) 476 F Supp 966.

District Court does not lack jurisdiction over plaintiffs' claim under Endangered Species Act (15 USCS §§ 1531 et seq.) relating to effects of government's cutting program in national forest on red-cockaded woodpecker, despite government's claim that plaintiff failed to comply with 60-day notice period provided for in § 1540(g)(2)(A), where (1) plaintiffs sent notice of its objections to program on June 7, (2) government replied on July 2 and 5 indicating that cutting program was in full compliance with Act, (3) plaintiffs filed suit on July 12, and (4) agencies involved are not reconsidering their position and government has not alleged or shown any prejudice due to timing of notice. Sierra Club v Block (1985, DC Dist Col) 614 F Supp 488, 15 ELR 20775.

Claims by environmental groups alleging that Secretary of Commerce did not administer Endangered Species Act properly in connection with U.S. government's development and deployment of sonar defense system could not be brought under 16 USCS § 1540(g)(1)(A), but had to be brought under Administrative Procedure Act. Hawaii County Green Party v Clinton (2000, DC Hawaii) 124 F Supp 2d 1173.

U.S. Fish and Wildlife Service's initial finding--that emergency listing was not warranted under 16 USCS § 1533(b)(7)--was not reviewable under 16 USCS § 1540(g)(1) because nothing in 16 USCS § 1533(b)(7) indicated that option of emergency listing was non-discretionary with U.S. Secretary of Interior. Inst. for Wildlife Prot. v Norton (2003, WD Wash) 303 F Supp 2d 1175.

District courts do not have jurisdiction under Endangered Species Act citizen suit provision over claims for maladministration or violations of 16 USCS § 1536; district court did not have jurisdiction under 16 USCS § 1540(g) over claims brought by various applicants, who were seeking permits to construct structures on Florida waterways, because claims were based upon allegations that Fish and Wildlife Service had failed to meet statutory deadlines for rendering biological opinions and had applied erroneous standards in rendering opinions. Fla. Marine Contrs. v Williams (2004, MD Fla) 17 FLW Fed D 706, motion gr, summary judgment den, judgment entered (2005, MD Fla) 378 F Supp 2d 1353, 18 FLW Fed D 785.

District court lacked jurisdiction over citizen suit brought by environmentalists under 16 USCS § 1540(g)(1), part of Endangered Species Act (EAS) and which challenged open-ended delay by U.S. Fish and Wildlife Service in amending critical habitat for three closely-related endangered species of beach mice, because (1) citizen suit provision of EAS did not allow federal courts to exercise jurisdiction over claims of abuse of agency discretion and (2) facts did not convert delay into decision not to act at all. Sierra Club v Norton (2004, SD Ala) 313 F Supp 2d 1291.

No requirement for final federal agency action existed with regard to Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., claim because employees of agency brought suit under 16 USCS § 1540(g), citizen suit provision of ESA. Forest Serv. Emples. for Envtl. Ethics v United States Forest Serv. (2005, DC Mont) 397 F Supp 2d 1241.

Federal agencies' motion for protective order was granted with regard to discovery related to environmental groups' National Environmental Protection Act (NEPA) claims and groups' request for jurisdictional discovery on Endangered Species Act (ESA) claims because under 5 USCS § 704 of Administrative Procedure Act (APA), 5 USCS §§ 701 et seq., court lacked jurisdiction over those claims; furthermore, because final agency action was not required to show jurisdiction for ESA claims brought under citizen suit provision, 16 USCS § 1540, jurisdictional discovery was not warranted. Ctr. for Biological Diversity v United States HUD (2006, DC Ariz) 241 FRD 495, 63 Envt Rep Cas 1084.

District court lacked subject matter jurisdiction to consider environmental group's challenge to Federal Communications Commission's policies and practices with regard to registering owners and licenses of communications towers that allegedly harmed endangered birds on Hawaiian Islands; private right of action under 16 USCS § 1536 and 16 USCS § 1540, part of Endangered Species Act, did not remove claims from jurisdictional constraints of 47 USCS § 402 under Communications Act of 1934 and 28 USCS § 2342, part of Hobbs Act. Am. Bird Conservancy, Forest Conservation Council v FCC (2006, DC Hawaii) 408 F Supp 2d 987, 61 Envt Rep Cas 1987, affd (2008, CA9 Hawaii) 545 F3d 1190, 67 Envt Rep Cas 1833, 38 ELR 20257.

Plaintiff builders association's claim that defendant officials of U.S. Fish and Wildlife Service and Department of Interior failed to conduct 16 USCS § 1533's mandatory Environmental Species Act reviews was reviewable under 5 USCS § 704 as inaction made reviewable by statute because 16 USCS § 1540(g)(1)(C) explicitly provided private right of action to compel nondiscretionary duties. Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330.

Plaintiff builders association's claim that defendant officials of U.S. Fish and Wildlife Service and Department of Interior failed to conduct 16 USCS § 1533's mandatory Environmental Species Act reviews was reviewable under 5 USCS § 704 as inaction made reviewable by statute because 16 USCS § 1540(g)(1)(C) explicitly provided private right of action to compel nondiscretionary duties, and, moreover, § 1540(g)(5) provided that injunctive relief provided by citizen suit provision did not restrict any right which any person (or class of persons) had under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief against such officials. Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330.

Pursuant to 16 USCS § 1540(c), federal district court had jurisdiction to exercise its traditional equitable injunctive powers in citizen action pursuant to 16 U.S.C. § 1540(g)(1)(A) alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., because regulatory gap presented immediate risk to Canada lynx, threatened species. Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.

Federal agencies were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal of claim by environmental groups that federal agency was liable for violation of Endangered Species Act's "take" provision under 16 USCS § 1538 based on its failure to comply with terms of Incidental Take Statement (ITS) that was issued pursuant to 16 USCS § 1536(b)(4); notwithstanding 16 USCS § 1540(g)'s implied exclusion of suits alleging permit violations, groups' allegation of violation of § 1538(a) was not precluded by fact that it also turned on alleged violation of ITS, which was in some sense permit. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2009, ED Cal) 629 F Supp 2d 1123, 70 Envt Rep Cas 1054.

While at first glance 16 USCS § 1540(g)(1) may have granted plaintiffs cause of action against Bureau of Customs and Border Protection's failure to enforce 16 USCS § 1538 ban on importation of endangered salmon, which already was codified in 50 CFR § 223.203(a) and 19 CFR § 12.26(g), crux of inquiry was found in words of statute "which is not discretionary with Secretary"; case law and constitutional concerns placed plaintiffs' claims squarely in category of discretionary acts and duties, and, therefore, court could not require such actions on part of National Marine Fisheries Service or Customs. Salmon Spawning & Recovery Alliance v Basham (2007) 31 CIT 267, 477 F Supp 2d 1301, 64 Envt Rep Cas 2105, 29 BNA Intl Trade Rep 1465, 37 ELR 20059, affd in part and revd in part on other grounds, remanded (2008, CA FC) 532 F3d 1338, 30 BNA Intl Trade Rep 1257, 38 ELR 20175, reh gr, op withdrawn on other grounds (2008, CA FC) 30 BNA Intl Trade Rep 1873, 39 ELR 20304.

Section 11 of Endangered Species Act (ESA), 16 USCS § 1540(g)(1)(A) did not conflict with broad residual jurisdiction encompassed in 28 USCS § 1581(i) because 28 USCS § 1581(i) was more specific and later enacted statute, and as such took priority over general grant of jurisdiction to district courts in § 11 of ESA. Salmon Spawning & Recovery Alliance v United States (2009, CIT) 626 F Supp 2d 1277, 31 BNA Intl Trade Rep 1410.

13.--Notice requirements

District Court did not abuse its discretion in sanctioning attorneys who brought private suit under Endangered Species Act one day after serving notice of intent to sue in violation of 60-day waiting period. Maine Audubon Soc. v Purslow (1990, CA1 Me) 907 F2d 265, 16 FR Serv 3d 1264, 21 ELR 20044.

Notice provision (16 USCS § 1540(g)(2)(A)) provides agencies with opportunity to resolve dispute and take any necessary corrective measures before resort to courts; notice must adequately inform agency of exact grievances against it if it is to fulfill this purpose. Water Keeper Alliance v United States DOD (2001, CA1 Puerto Rico) 271 F3d 21, 53 Envt Rep Cas 1481, 32 ELR 20314.

Interior Department is entitled to dismissal of timber companies' challenges to biological opinions holding up timber sales, but companies maintain right to refile, where companies failed to file 60-day notice of intent to sue with respect to new claims challenging validity, not untimeliness, of opinions, because 60-day notice is jurisdictional and failure to comply is absolute bar to bringing action under 16 USCS § 1540. Lone Rock Timber Co. v United States Dep't of Interior (1994, DC Or) 842 F Supp 433, 24 ELR 20873.

Landowners did not comply with notice-of-intent-to-sue requirement of 16 USCS § 1540(g)(2)(A) when they sent notice to Secretary of Interior concerning suit involving hawksbill sea turtles and green sea turtles, where Secretary of Commerce, not Secretary of Interior, maintained jurisdiction over and responsibility for species named in action. Hawksbill Sea Turtle v FEMA (1996, DC VI) 35 VI 213, 939 F Supp 1195, revd, remanded on other grounds (1997, CA3 VI) 37 VI 526, 126 F3d 461, 45 Envt Rep Cas 1241, 28 ELR 20101, summary judgment den, motion to strike den, motion den, objection denied, application den (1998, DC VI) 39 VI 268, 11 F Supp 2d 529, 46 Envt Rep Cas 2050, 29 ELR 20100, remanded without op (2000, CA3 VI) 215 F3d 1314 and (criticized in Jean Alexander Cosmetics, Inc. v L'Oreal USA, Inc. (2006, CA3 Pa) 458 F3d 244, 80 USPQ2d 1470).

In dispute involving use of water in reservoir, letter sent to agency almost two years before suit was brought met notice requirement of 16 USCS § 1540(g) because challenged use of water was ongoing situation. San Carlos Apache Tribe v United States (2003, DC Ariz) 272 F Supp 2d 860, affd (2005, CA9 Ariz) 417 F3d 1091, subsequent app (2005, CA9 Ariz) 144 Fed Appx 635, 35 ELR 20163.

Federal district court had jurisdiction to hear Florida's motion for injunctive relief to require Army Corps of Engineers to maintain water releases from dam located upstream of critical habitat for threatened and endangered mussel species because Florida had complied with 60-day citizen suit notice requirement under 16 USCS § 1540 (g)(2)(A)(1), part of Endangered Species Act by sending letter to Corps many months before, giving notice that it was challenging ongoing operations of Corps' upstream reservoirs. Alabama v United States Army Corps of Eng'rs (2006, ND Ala) 441 F Supp 2d 1123.

Even where need for 12-month finding remained speculative when intent to sue submitted on January 13, 2009, organizations and individuals' failure to provide 60 days' notice prior to bringing its claims with respect to 12-month finding meant those claims had to be dismissed; moreover, because organizations and individuals intent to sue letter did not notify Secretary of Department of Interior that they intended to challenge his subsequent failure to issue 12-month finding, it would have been unfair to permit this claim to proceed; therefore, court dismissed organizations and individuals' claim that Secretary's failure to issue 12-month finding violated 16 USCS § 1533. Conservation Force v Salazar (2010, DC Dist Col) 715 F Supp 2d 99.

14.----Requirements not applicable

Sixty day notice requirement of 16 USCS § 1540(g) is only applicable to automatic standing provisions of § 1540, and does not affect plaintiffs' standing to challenge defendants' actions under traditional guidelines for standing. Jackson Hole Alliance for Responsible Planning v Watt (1983, DC Wyo) 13 ELR 20994.

Failure to meet 60-day notice requirement under 16 USCS § 1540(g) was not fatal to claim that biological opinions rendered by two consulting agencies were arbitrary and capricious because action was also alleged under Administrative Procedure Act. NRDC v Rodgers (2005, ED Cal) 381 F Supp 2d 1212, 61 Envt Rep Cas 1771.

Environmental group was not required to give U.S. Fish and Wildlife Service (FWS) 60-day notice required by 16 USCS § 1540(g)(2)(C), before bringing suit that challenged FWS's decision to reject petitions to list greater sage-grouse under 16 USCS § 1533; ESA notice requirement did not apply because group's suit was brought under Administrative Procedure Act, 5 USCS §§ 701 et seq., to review discretionary decision of FWS. Western Watersheds Project v United States Forest Serv. (2007, DC Idaho) 535 F Supp 2d 1173, 66 Envt Rep Cas 1693.

Plaintiff organizations' delay in filing claim under Endangered Species Act, 16 USCS §§ 1531 et seq., was not improper because they sent Maine Department of Inland Fisheries and Wildlife statutorily mandated sixty-day notice of intent to sue letter pursuant to 16 USCS § 1540(g) within two months after opinion was written in similar case. Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.