1 of 15 documents united states code service

15.----Violation of requirement

Plaintiff's notice under 16 USCS § 1540 to Secretary of Interior to file suit in regard to endangered sea turtles in terrestrial habitat did not satisfy requirement of § 1540 that Secretary of Commerce be notified in same manner before bringing suit in regard to same sea turtles in their marine habitat. Hawksbill Sea Turtle v Federal Emergency Mgmt. Agency (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).

Citizen suit to enforce Endangered Species Act (16 USCS §§ 1531 et seq.) against private defendants is dismissed without prejudice for failure to comply with requirement that no action may be commenced prior to 60 days after written notice of violation is given to Secretary of Interior, because notice requirement is strictly construed, and thus plaintiff's argument that imminent destruction of bald eagle nests is emergency justifying lack of notice could not excuse its filing suit 1 day after notifying secretary. Maine Audubon Soc. v Purslow (1987, DC Me) 672 F Supp 528, 26 Envt Rep Cas 2077, 18 ELR 20562.

Humane society's challenge to authorization of deer hunting on national wildlife refuge under Endangered Species Act (16 USCS §§ 1531 et seq.) will be dismissed, where society's only notice given to Fish and Wildlife Service was announced intention to sue if rule were adopted, made in comments submitted during notice-and-comment period of rulemaking, because such notice did not meet requirement of 60-day pre-suit notice under 16 USCS § 1540(g)(2)(A). Humane Soc. of United States v Lujan (1991, DC Dist Col) 768 F Supp 360.

Jurisdiction is lacking to hear complaint of whale-watching tour operator that there are very few humpback whales to see off coast of Hawaii due to sonar testing, even though operator has standing under 16 USCS § 1540(g)(1)(A), because operator has not given 60 days' notice to Interior Secretary and to researchers allegedly violating statute, as required by § 1540(g)(2)(A). Kanoa Inc. v Clinton (1998, DC Hawaii) 1 F Supp 2d 1088.

Suit challenging development and use of Navy sonar system was barred by failure to comply with notice provision, 16 USCS § 1540(g)(2)(A), part of Endangered Species Act; court declined to hold claim in abeyance until expiration of 60-day period to permit plaintiff to file notice. Cetacean Cmty. v President of the United States (2003, DC Hawaii) 249 F Supp 2d 1206, affd (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR 20120.

Non-profit group's claim that National Marine Fisheries Service (NMFS) violated Endangered Species Act, 16 USCS § 1531 et seq. (ESA), by allowing fishing of certain listed salmon types through regulation, incidental take permits, and ESA consultation process was dismissed where group appeared to be seeking wholesale improvement by court decree of way in which NMFS made and effectuated listing determinations; judicial precedent made clear that final agency action requirement in 5 USCS § 704 barred federal jurisdiction over suits for broad programmatic relief, and non-profit group had not included claim in their 60-day notice letter as required under 16 USCS § 1540(g)(2)(A)(i). Common Sense Salmon Recovery v Evans (2004, DC Dist Col) 329 F Supp 2d 96, 59 Envt Rep Cas 1081, dismd (2005, App DC) 2005 US App LEXIS 1810.

Leaseholders' citizen suit with respect to alleged taking of endangered plover in violation of 16 USCS § 1532(19) was improper because leaseholders failed to provide requisite 60-day notice under 16 USCS § 1540(g) that they intended to sue state officers for taking plover in process of removing leaseholders' mobile homes; leaseholders' notice failed to even mention plover and, therefore, never provided State opportunity to rectify asserted Endangered Species Act, 15 USCS §§ 1531 et seq., violation with respect to plover. Pulaski v Chrisman (2005, CD Cal) 352 F Supp 2d 1105, affd (2005, CA9 Cal) 127 Fed Appx 993.

Court granted Bureau of Reclamation and Army Corps of Engineers' motion to dismiss because plaintiff organization did not comply with 60-day notice provision, 16 USCS § 1540(g)(2)(A), before it filed its complaint, and due to organization's failure to satisfy that mandatory condition precedent to suit, action had to be dismissed as barred by terms of statute; further, organization could not cure its defective notice by sending Bureau and Corps Notice of Intent after commencing suit and then waiting 60 days to file supplement complaint. Forest Guardians v United States Bureau of Reclamation (2006, DC NM) 462 F Supp 2d 1177.

District court lacked subject matter jurisdiction over landowner's citizen suit, which alleged that National Marine Fisheries Service (NMFS) acted contrary to procedural provisions of 16 USCS § 1533 in violation of 5 USCS § 706 when NMFS declined to review his petition to redefine southern boundary of California Central Coast evolutionarily-significant unit of coho salmon; landowner failed to give 60-day notice required under 16 USCS § 1540(g)(2)(C), and APA could not provide jurisdiction under 5 USCS § 704 because Congress provided another adequate remedy under ESA. McCrary v Gutierrez (2007, ND Cal) 528 F Supp 2d 995.

Because environmental group's complaint was silent with respect to any action taken to fulfill statutory notice provision in 16 USCS § 1540(g)(2)(A), court dismissed this claim as specifically pled under Endangered Species Act. Miccosukee Tribe of Indians of Fla. v United States (2008, SD Fla) 38 ELR 20205.

In case in which environmental group and others (plaintiffs) filed emergency motion for preliminary injunction to halt construction of power plant, it appeared that district court lacked jurisdiction over federal defendants since plaintiffs failed to provide federal defendants with requisite notices of intent to sue under 42 USCS § 7604(b)(1)(A), 16 USCS § 1540(g)(2)(A)(I), and 33 USCS § 1365(b)(1)(A), as required for suits under Clean Air Act, Endangered Species Act, and Clean Water Act, respectively. Palm Beach County Envtl. Coalition v Florida (2008, SD Fla) 587 F Supp 2d 1254, motion gr, count dismd, motion den, motion to strike den, as moot (2009, SD Fla) 651 F Supp 2d 1328.

Group's claim that United States Fish and Wildlife Service (FWS), Secretary of Interior, and FWS Director violated 16 USCS § 1533(b)(3)(B) by failing to make 12-month finding on group's January 2008 petition had to be dismissed because when bringing action pursuant to citizen suit provisions of Endangered Species Act, 16 USCS §§ 1533 et seq., no plaintiff may commence action without giving Secretary 60-days prior written notice of its intent to sue, 16 USCS § 1540(g)(2), and group failed to provide 60-days' notice prior to bringing its claims with respect to 12-month finding; moreover, group's request for leave to amend complaint was denied because allowing group leave to amend its complaint after commencing action without proper notice would undermine Fed. R. Civ. P. 3 and render notice requirement meaningless. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.

Unpublished Opinions

Unpublished: Plaintiffs' claim did not give Secretary of Interior "fair notice" that it challenged Secretary's final decision denying emergency listing of Mono Basin area sage grouse; had allegations been meant to challenge December 26, 2002 regulation rather than March 20, 2002 letter, plaintiffs should have incorporated them into claim for relief distinct from second claim for relief. Inst. for Wildlife Prot. v Norton (2005, CA9 Wash) 149 Fed Appx 627.

16. Standing

Parties challenging federal agency's biological opinion imposing lake-level restrictions to protect endangered species held to have standing under zone of interests test to bring §§ 1533 and 1536 claims under Endangered Species Act, and § 1536 claim under Administrative Procedure Act. Bennett v Spear (1997) 520 US 154, 137 L Ed 2d 281, 117 S Ct 1154, 97 CDOS 2000, 97 Daily Journal DAR 3647, 44 Envt Rep Cas 1161, 27 ELR 20824, 10 FLW Fed S 354, on remand, remanded (1997, CA9) 112 F3d 402, 97 CDOS 2932, 97 Daily Journal DAR 5164, summary judgment gr, summary judgment den, in part sub nom Bennett v Spear (1998, DC Or) 5 F Supp 2d 882.

Environmental organization had standing under citizen suit provision of ESA or APA to bring suit against Department of Agriculture for violating 15 USCS § 1536 by failing to conserve endangered species dependent on specified aquifer. Sierra Club v Glickman (1998, CA5 Tex) 156 F3d 606, 47 Envt Rep Cas 1566, 29 ELR 20159, reh den (1998, CA5 Tex) 1998 US App LEXIS 33142.

Although U.S. Const. art. III did not prevent Congress from authorizing suit in name of animal, cetacean community, which consisted of all of world's whales, porpoises, and dolphins, did not have standing to sue under: (1) Endangered Species Act, 15 USCS §§ 1531 et seq., since there was no hint in definition of "person" in 16 USCS § 1532(13) that "person" authorized to bring suit to protect endangered or threatened species could be animal that was itself endangered or threatened; (2) Administrative Procedure Act (APA), 5 USCS §§ 701 et seq., since § 10(a) (5 USCS § 702(a)) of APA did not define "person" to include animals; (3) Marine Mammal Protection Act (MMPA), 16 USCS §§ 1361 et seq., since no court had ever held that animal, even marine mammal whose protection was at stake, had standing to sue in its own name to require that party seek permit or letter of authorization under MMPA; and (4) National Environmental Policy Act (NEPA), 42 USCS §§ 4321 et seq., since although courts had recognized standing for individuals and groups of individuals when they contend that challenged federal action will adversely affect environment, nothing in NEPA permitted court to hold that animals who were part of environment had standing to bring suit on their own behalf. Cetacean Cmty. v Bush (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR 20120.

Environmental groups' Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., claims against development company were moot because Bald Eagle had been de-listed; therefore, no activities by company could constitute "take" of bald eagle within meaning of ESA. Ctr. for Biological Diversity v Marina Point Dev. Co. (2008, CA9 Cal) 535 F3d 1026, 67 Envt Rep Cas 1289, 38 ELR 20200, reprinted as amd, reh den, reh, en banc, den, costs/fees proceeding, remanded (2009, CA9 Cal) 560 F3d 903, amd on other grounds (2009, CA9 Cal) 566 F3d 794 and op withdrawn, amd on other grounds, petition den, as moot, remanded (2009, CA9 Cal) 560 F3d 903 and reprinted as amd, remanded (2009, CA9 Cal) 566 F3d 794.

State and mining companies have standing under Endangered Species Act to challenge ICC's authorization of abandonment of stretch of railroad track linking mining companies and other shippers in silver-producing area of state. Idaho by & Through Idaho Pub. Utils. Comm'n v ICC (1994, App DC) 308 US App DC 268, 35 F3d 585, 39 Envt Rep Cas 1658, 25 ELR 20191.

Former elephant handler's desire to visit elephants which might include attending circus performances, his experience with them, and his alleged ability to recognize effects of mistreatment were sufficient to give him standing in bringing lawsuit under Endangered Species Act, 16 USCS §§ 1531 et seq. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2003, App DC) 354 US App DC 432, 317 F3d 334, 55 Envt Rep Cas 1904.

Plaintiff organizations clearly had standing under "citizens' suit" provision of Act since 16 USCS § 1540(g) confers automatic standing on any person claiming violation thereof; in addition, plaintiffs alleged "injury in fact" to their members, and, as visitors and users of crane habitat, were within "zone of interest" intended to be protected by statute. National Wildlife Federation v Coleman (1975, SD Miss) 400 F Supp 705, 5 ELR 20566, revd on other grounds (1976, CA5 Miss) 529 F2d 359, 9 Envt Rep Cas 1465, 6 ELR 20344, 32 ALR Fed 306, reh den (1976, CA5 Miss) 532 F2d 1375, 6 ELR 20648 and cert den (1976) 429 US 979, 50 L Ed 2d 587, 97 S Ct 489, 9 Envt Rep Cas 1559.

Former owner of contaminated property lacks standing to challenge remedial plan under 16 USCS § 1540(g), where challenge is based on allegation that plan's provision for draining marsh would harm endangered species and motivation is for less costly remedial plan, because alleged injury to former owner is not caused by alleged endangered species violation. Mayock v INS (1990, ND Cal) 736 F Supp 1561.

Water districts' claims under Endangered Species Act (ESA) (16 USCS §§ 1531 et seq.) will not be dismissed for lack of standing, where districts allege substantial injury from deprivation of their alleged water rights due to federal decision reducing their agricultural allotments at least 50 percent for purposes of saving threatened fish species, because these allegations are sufficient to confer standing under either § 1540(g) or "zone of interests" analysis. Westlands Water Dist. v United States, Dep't of the Interior, Bureau of Reclamation (1994, ED Cal) 850 F Supp 1388 (Vacatur noted in Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 686 F Supp 2d 1026, 71 Envt Rep Cas 1135, 40 ELR 20263).

Allegations that Forest Service's failure to implement proper vegetation and snow management techniques caused one plaintiff's water rights restriction and jeopardized another's future viewing of endangered aquatic species were sufficient to satisfy causation prong of test for standing to bring citizen suit under 16 USCS § 1540(g). Coalition for Sustainable Resources, Inc. v United States Forest Serv. (1999, DC Wyo) 48 F Supp 2d 1303, 48 Envt Rep Cas 1753, affd, in part, vacated, in part on other grounds (2001, CA10 Wyo) 259 F3d 1244, 53 Envt Rep Cas 1368, 2001 Colo J C A R 4014, 31 ELR 20864.

Fact that U.S. Fish and Wildlife Service was not required under 16 USCS § 1540(g) to designate as critical habitat for threatened species of minnows areas that plaintiff used to study minnows did not deprive plaintiff of standing to bring action to force Service to designate critical habitat for minnows at earliest possible time, as long as there was reasonable probability that designation would include area. Southwest Ctr. for Biological Diversity v Clark (1999, DC NM) 90 F Supp 2d 1300.

Suit by community of whales, dolphins, and porpoises for alleged violations of Endangered Species Act (ESA) and other federal statutes in connection with development of sonar system was dismissed for, inter alia, lack of standing because animals were not "persons" as defined under 16 USCS § 1532(13), part of ESA; also, claims were not ripe because there had been no proposal to use sonar system in challenged manner. Cetacean Cmty. v President of the United States (2003, DC Hawaii) 249 F Supp 2d 1206, affd (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR 20120.

Interest group representing landowners had procedural standing under U.S. Const. art. III, where proper administration of Endangered Species Act within one member's land became actual injury when Fish and Wildlife Service issued allegedly improper "not prudent" determinations regarding critical habitat for eight plant species, thereby establishing concrete injury, and group had procedural right by virtue of its right to bring citizen's suit under 16 USCS § 1540(g)(1). Bldg. Indus. Legal Def. Found. v Norton (2003, SD Cal) 259 F Supp 2d 1081, 56 Envt Rep Cas 1782.

With respect to monitoring activities that are required under 16 USCS § 1533(b)(3)(C)(iii), part of Endangered Species Act (ESA), word "shall" of course connotes statutory command, but word "effectively" renders discretionary details of how command is executed; ESA's citizen suit provisions, 16 USCS § 1540(g)(1)(C), are therefore inapplicable to monitoring activities under § 1533(b)(3)(C)(iii). Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.

17.--Environmental groups

16 USCS § 1540(g) provides that "any person" may commence suit to enjoin any person who is alleged to be in violation of Endangered Species Act, and therefore, environmental associations need meet only constitutional requirements for standing for their claims under ESA; physical damage to place which individual personally visits or to animals that he actually observes is type of injury sufficient to confer standing under Constitution. Defenders of Wildlife, Friends of Animals & Their Environment v Hodel (1988, CA8 Minn) 851 F2d 1035, 28 Envt Rep Cas 1129, 18 ELR 21343 (criticized in Bennett v Plenert (1995, CA9 Or) 63 F3d 915, 95 CDOS 6699, 95 Daily Journal DAR 11470, 41 Envt Rep Cas 1129, 25 ELR 21479).

Citizen suit provision permitted environmental groups to sue EPA to enjoin EPA's alleged unauthorized taking of species in violation of Endangered Species Act (16 USCS §§ 1531 et seq.) by continued registrations of strychnine. Defenders of Wildlife v Administrator, EPA (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.

Environmental associations have standing to bring suit under Endangered Species Act to enjoin federal funding of projects in foreign countries; Act's requirement that agency consult with Secretary of Interior regarding impact of such funding on endangered species applies to projects in foreign countries. Defenders of Wildlife, Friends of Animals & Their Environment v Lujan (1990, CA8 Minn) 911 F2d 117, 32 Envt Rep Cas 1213, 20 ELR 21442, reh den, en banc (1990, CA8) 1990 US App LEXIS 22299 and revd, remanded on other grounds (1992) 504 US 555, 119 L Ed 2d 351, 112 S Ct 2130, 92 CDOS 4985, 92 Daily Journal DAR 7876, 92 Daily Journal DAR 8967, 34 Envt Rep Cas 1785, 22 ELR 20913, 6 FLW Fed S 374.

Nonprofit organization that seeks to protect threatened species has direct interest in seeing that Fish and Wildlife Service complies with 16 USCS § 1536(a)(2); thus, such organization has standing to bring suit under 16 USCS § 1540. Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal DAR 7051, 53 Envt Rep Cas 2129, 31 ELR 20778.

National Audubon Society had standing to bring suit against U.S. Fish and Wildlife Service under 16 USCS §§ 1531 et seq. since organization's activities in observing and studying wild condors may be set back by agency's action to bring remaining wild condors into captivity, and activities of organization were within "zones of interests" protected by Endangered Species Act. National Audubon Soc. v Hester (1986, App DC) 255 US App DC 191, 801 F2d 405.

Allegations by non-profit organizations dedicated to protection of wild fishes that aesthetic, recreational, and environmental interests of their members were being adversely affected and irreparably injured by various federal agencies' failure to prevent importation of endangered salmon under § 7(a)(2) of Endangered Species Act of 1973, 16 USCS § 1536(a)(2), was sufficient to establish injury-in-fact fairly for purposes of standing. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (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) 2008 US App LEXIS 25358, 30 BNA Intl Trade Rep 1873, 39 ELR 20304.

Private nonprofit associations and private nonprofit corporation dedicated to protecting and conserving earth's natural resources and wildlife, and scientist who studied endangered species of bird, had standing under Endangered Species Act to bring action to protect endangered species of bird whose habitat was threatened by feral sheep and goats maintained by state for sport-hunting. Palila v Hawaii Dep't of Land & Natural Resources (1979, DC Hawaii) 471 F Supp 985, 14 Envt Rep Cas 1204, 9 ELR 20426, affd (1981, CA9 Hawaii) 639 F2d 495, 15 Envt Rep Cas 1741, 11 ELR 20446.

Environmental groups have standing to bring action which seeks declaratory and injunctive relief requiring Fish and Wildlife Service to define critical habitat of razorback sucker fish (already classified as endangered species for more than two years). Colorado Wildlife Fed'n v Turner (1992, DC Colo) 36 Envt Rep Cas 1409, 23 ELR 20402.

Environmental organizations had standing to bring action under 16 USCS § 1540(g) on behalf of their members to enjoin logging company from conducting or allowing any logging activities within boundaries of timber harvest plans pending completion of formal consultation with Fish and Wildlife Service and National Marine Fisheries Service, where organizations' members derived aesthetic enjoyment from coho salmon in areas covered by timber harvest plans, coho were present in areas, and expert testimony established link between logging operations and degradation of coho habitat. Environmental Protection Info. Ctr., Inc. v Pacific Lumber Co. (1999, ND Cal) 67 F Supp 2d 1090.

Citizen suit provision of Endangered Species Act, 16 USCS §§ 1531 et seq., did not impermissibly delegate legislative power to environmental group, private entity. Shields v Babbitt (2000, WD Tex) 229 F Supp 2d 638.

Programmatic relief is available under Endangered Species Act's citizen suit provision, regardless of whether such relief is available when claim is brought solely under Administrative Procedure Act. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

Environmental organizations' claims against United States Fish and Wildlife Service (USFWS) alleged that USFWS issued final rule for reintroduction of Mexican wolf and issued memorandum of understanding and standard operating procedure, which resulted in final rule failing to conserve species; accordingly, claims should be brought under 16 USCS § 1540(g)(1)(A), instead of 16 USCS § 1540(g)(1)(C), or 5 USCS § 706. Defenders of Wildlife v Tuggle (2009, DC Ariz) 607 F Supp 2d 1095.

18.--Trade associations

Trade association of timber companies did not have standing to assert quality of life injuries under Endangered Species Act and Forest and Rangeland Renewable Resources Planning Act, where such injuries were merely attenuated versions of economic injuries already considered. Region 8 Forest Serv. Timber Purchasers Council v Alcock (1993, CA11 Ga) 993 F2d 800, 23 ELR 20151, 7 FLW Fed C 459, cert den (1994) 510 US 1040, 126 L Ed 2d 651, 114 S Ct 683 and (criticized in Wyoming Timber Indus. Ass'n v United States Forest Serv. (2000, DC Wyo) 80 F Supp 2d 1245, 49 Envt Rep Cas 2095, 30 ELR 20296).

Building industry association's challenge to final rule listing Mojave Desert population of desert tortoise as endangered species is dismissed without prejudice, where final rule was issued on or about April 2, 1990 and complaint was filed on April 13, 1990, because association failed to satisfy 60-day notice and delay period required by 16 USCS § 1540(g)(2)(c) prior to filing suit. Building Industry Ass'n v Lujan (1992, DC Dist Col) 785 F Supp 1020.

Claim of organizations representing agricultural interests of farmers and ranchers, seeking injunction to remove mollusks from list of endangered or threatened species under Endangered Species Act (ESA) (16 USCS §§ 1531 et seq.), is denied summarily, where plaintiffs alleged that listing will have adverse impact on members' aesthetic and recreational enjoyment of mollusk habitat, because plaintiffs cannot establish that area of river and water in which they recreate or aesthetically enjoy will be destroyed or harmed by listing of mollusks, so plaintiffs' conclusory statements of harm do not constitute injury which falls within zone of interests of ESA, so plaintiffs lack standing. Idaho Farm Bureau Fed'n v Babbitt (1995, DC Idaho) 900 F Supp 1349, 26 ELR 20491.

Home builders' associations lack standing to challenge Fish and Wildlife Service's technical correction which changed listing of 2 endangered species to 4 based on scientific evidence, where associations could not show any threat or adverse impact on their development interests based solely on correction, because associations lack standing to sue under 16 USCS § 1540(g) citizen suit provision. National Ass'n of Home Builders of the United States v Babbitt (1997, DC Dist Col) 990 F Supp 1, 28 ELR 20222.