Force v. Salazar

• Citation: 715 F.Supp.2d 99
• Decision Date: 07 June 2010
• Docket Number: Civil Action No. 09-496 (JDB).
• Parties: CONSERVATION FORCE, et al., Plaintiffs, v. Kenneth SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

715 F.Supp.2d 99

CONSERVATION FORCE, et al., Plaintiffs,

v.Kenneth SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants.

Civil Action No. 09-496 (JDB).

United States District Court,District of Columbia.

June 7, 2010.

John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Hao-Chin Hubert Yang, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiffs-organizations and individuals that support sustainable hunting of the Canadian wood bison-have brought suit alleging that the Secretary of the Department of the Interior has violated several provisions of the Endangered Species Act of 1973 (“ESA” or “the Act”), 16 U.S.C. § 1531 et seq., in his treatment of that species. The Canadian wood bison is currently listed as “endangered” under the Act. In 2007, the Canadian National Wood Bison Recovery Team petitioned to “downlist” the wood bison to “threatened,” but the Secretary has not yet made a final determination on the petition. Plaintiffs contend that the Secretary's failure to act on the petition violates the ESA. Several individual plaintiffs also challenge as unlawful the Secretary's failure to process their applications to import wood bison hunting trophies. For the reasons explained below, the Court will grant defendants' motion to dismiss, and will deny plaintiffs' motion for summary judgment.

BACKGROUND

I. Statutory and Regulatory Background

The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It is intended to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). To this end, the Act directs the Secretary to classify species whose survival is in danger as “endangered” or “threatened.” See 16 U.S.C. § 1533. ¹

Individuals may petition the Secretary to list, downlist, or delist species. See id. § 1533(b)(3). After receiving any such petition, the Secretary must, “[t]o the maximum extent practicable,” make a finding within 90 days “as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted” (“90-day finding”). 16 U.S.C. § 1533(b)(3)(A). And “[w]ithin 12 months after receiving a petition that is found ... to present substantial information indicating that the petitioned action may be warranted,” the Secretary must determine whether the petitioned action is warranted, is not warranted, or is warranted but is precluded by pending proposals concerning other species (“12-month finding”). Id. § 1533(b)(3)(B).

The ESA also generally prohibits the importation of endangered and threatened species, including hunting trophies. See id. § 1538(a)(1)(A), (c)(2); 50 C.F.R. §§ 17.21(b), 17.32. Certain species may be imported under limited circumstances, however-such as “for scientific purposes or to enhance the propagation or survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A). Individuals seeking to import a listed species must apply for a permit and satisfy a number of application requirements. See id. § 1539(a); 50 C.F.R. §§ 17.22, 17.31(a).

II. Factual Background

The Canadian wood bison, found in portions of northwestern Canada, was by the late 1800s hunted nearly to extinction. See 74 Fed.Reg. 5908, 5909 (Feb. 3, 2009). It was first classified as an “endangered” species in 1970 under the statutory predecessor to the ESA, and has remained so listed under the ESA. Id.

Between 2000 and 2004, the four individual plaintiffs to this action purchased wood bison hunts in Canada, which permits limited hunting of the wood bison, and each then successfully hunted a wood bison. Am. Compl. ¶¶ 15-18. With Conservation Force's assistance, they each applied to import their wood bison trophies into the United States. Am. Compl. ¶¶ 15-18. The Secretary had not processed these import permit applications by the time this action was filed.

In November 2007, the Canadian National Wood Bison Recovery Team (“the Team”) petitioned the Secretary to downlist the wood bison from endangered to threatened. ² The Team's petition stated that the wood bison's “populations are healthy,” its “habitat remains plentiful,” and conservation “recovery and management plans are being implemented.” Id. at 5909-10. In February 2009, the Secretary, acting through the United States Fish and Wildlife Service (“the Service”), issued a 90-day finding. This finding concluded that the Team's downlisting petition “presents substantial scientific evidence and commercial information indicating that reclassifying the wood bison from endangered to threatened may be warranted.” Id. at 5910. The Secretary has not yet issued his 12-month finding on the petition.

Plaintiffs brought this action in March 2009, a month after the Secretary issued his 90-day finding. They contend that the Secretary's failure to issue a 12-month finding on the Team's downlisting petition violates the ESA. Am. Compl. at pp. 19-20, 25-28. The individual plaintiffs also claim that the Secretary's then-failure to process their applications to import wood bison hunting trophies violates both the ESA and their Due Process rights. Am. Compl. at pp. 21-24.

Plaintiffs moved for summary judgment before defendants responded to their amended complaint. Three days after plaintiffs filed their motion, the Service denied the individual plaintiffs' applications for import permits. See Defs.' Mot. to Dismiss (“Defs.' Mot.”) [Docket Entry 11], Ex. 1 (permit denials). As to each application, the Service concluded that “there is insufficient evidence to support the concept that this import of a sport-hunted trophy would provide a ‘conservation’ benefit to the wood bison.” Id. at 1. Defendants subsequently filed a motion to dismiss on jurisdictional grounds, as well as a cross-motion for summary judgment raising the same issues.

STANDARD OF REVIEW

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court-plaintiffs here-bears the burden of establishing that the court has jurisdiction. See U.S. Ecology, Inc. v. Dep't of Interior, 231 F.3d 20, 24 (D.C.Cir.2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (a court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.”); Pitney Bowes, Inc. v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998). “ ‘[P]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F.Supp.2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food and Drug Admin., 402 F.3d 1249, 1253-54 (D.C.Cir.2005).

DISCUSSION

I. The 12-Month Finding

Plaintiffs' primary contention is that the Secretary has failed to comply with the ESA's 12-month finding requirement. See 16 U.S.C. § 1533(b)(3)(B); Pls.' Mot. for Summ. J. (“Pls.' Mot.”) [Docket Entry 9], at 12-15. As they point out, although the Team submitted its downlisting petition in November 2007, and the Secretary issued a 90-day finding in February 2009, the Secretary still has not issued a 12-month finding.

The Secretary contends that plaintiffs cannot challenge his failure to issue a 12-month finding, however, because they did not comply with the ESA's notice requirement. Under the Act, a prospective plaintiff must provide written notice to the Secretary at least sixty days before suing for an alleged ESA violation. See 16 U.S.C. § 1540(g)(2). This requirement is “mandatory and jurisdictional.”

Research Air, Inc. v. Norton, 2006 WL 508341, at *10 (D.D.C.2006) (citing Common Sense Salmon Recovery v. Evans, 329 F.Supp.2d 96, 104 (D.D.C.2004)); accord Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998). ³

Plaintiffs submitted an intent to sue letter on January 13, 2009, more than sixty days before they filed suit. See Defs.' Mot., Ex. 2 (Intent to Sue Letter), 1. But plaintiffs' intent to sue letter lists only two complaints related to the wood bison: the Secretary's then-failure to issue a 90-day finding on the downlisting petition, and the Secretary's then-failure to process plaintiffs' applications to import wood bison trophies. See id. at 1-2.

Plaintiffs do not dispute that their intent to sue letter does not explicitly challenge the Secretary's failure to issue a 12-month finding. Plaintiffs insist, however, that their letter “made blatantly clear that Conservation Force intended to object to any further violation of ESA procedural requirements.” Pls.' Opp'n to Defs.' Mots. (“Pls.' Opp'n”) [Docket Entry 20], at 19-21 (citing Water Keeper Alliance v. Dep't of Def., 271 F.3d 21, 30 (1st Cir.2001) (notice sufficient where it made “clear that [plaintiff] intended to challenge an ongoing delinquency”)). But the letter did not do so. Its only reference to the Team's downlisting petition is: “This is also notice for the failure of the [Secretary] to make a timely 90-day determination on the petition to downlist the [Canadian] wood bison....” Intent to Sue Letter at 2. The letter does not mention any other delinquency related to the downlisting petition. Nor is it vaguely worded, leaving ambiguous whether the objection is to the absent...