Friends Animals v. Ashe
| Decision Date | 23 June 2014 |
| Docket Number | Civil Action No. 13–1607 JDB |
| Citation | 51 F.Supp.3d 77 |
| Parties | Friends of Animals, Plaintiff, v. Daniel M. Ashe, in his official capacity as Director of the United States Fish & Wildlife Service, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Michael Ray Harris, Friends of Animals, Centennial, CO, for Plaintiff.
Daniel J. Pollak, U.S. Department of Justice, Washington, DC, for Defendants.
Plaintiff Friends of Animals (“FOA”) brings this action against defendants Daniel M. Ashe (in his official capacity as Director of the United States Fish & Wildlife Service) and Sally Jewell (in her official capacity as Secretary of the Interior) (collectively, “FWS” or “the Secretary”). FOA alleges that FWS failed to make timely determinations on citizen petitions to list thirty-nine species as either endangered or threatened under the Endangered Species Act. Before the Court is [12] FWS's motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, the Court will grant the motion and dismiss FOA's complaint.
The Endangered Species Act (“ESA”) charges the Secretary of the Interior with the responsibility of classifying animal or plant species as “endangered” or “threatened.” 16 U.S.C. § 1533(a). The Secretary of the Interior has delegated this authority to the Fish & Wildlife Service. 50 C.F.R. § 402.01(b). In making these “listing” determinations, FWS is obligated by statute to follow certain procedures. 16 U.S.C. § 1533(b). As relevant here, “[e]mbracing citizen participation in the listing process, Congress has afforded any ‘interested person’ the opportunity to petition [FWS] to list a species.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1170 (9th Cir.2002) ; see also 16 U.S.C. § 1533(b)(3).
Upon receipt of such a “citizen petition,” FWS is subject to a series of statutory deadlines of varying flexibility. From the filing date, FWS has 90 days to make an initial determination “whether the petition presents substantial ... information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). FWS, however, is obligated to meet this 90–day deadline only “[t]o the maximum extent practicable,” id .—a grant of statutory flexibility that it takes advantage of on a regular basis. SeeIn re Endangered Species Act Section 4 Deadline Litig., MDL No. 2165, 716 F.Supp.2d 1369 (J.P.M.L.2010).
This initial determination—called a “90–day finding”—may be positive or negative. A “negative” 90–day finding—that is, when FWS determines that the petition does not “present[ ] ... substantial information” suggesting that listing the species “may be warranted”—ends the listing process for that citizen petition. See 16 U.S.C. § 1533(b)(3)(A)–(B). If FWS makes a “positive” 90–day finding—that is, it finds that the petition does present the requisite “substantial information” suggesting that listing the species “may be warranted”—the listing process continues. In that case, a separate duty is triggered to undertake a “status review” of the species named in the petition, and, within 12 months, issue the (aptly named) “12–month finding.” Id. § 1533(b)(3)(B). This 12–month deadline is calculated from the filing date of the citizen petition—not from the date of the 90–day finding. See Badgley, 309 F.3d at 1176. Unlike the 90–day deadline, which is binding on FWS only “[t]o the maximum extent practicable,” 16 U.S.C. § 1533(b)(3)(A), the 12–month deadline is mandatory and inflexible. See Badgley, 309 F.3d at 1176. Nevertheless, as a practical matter, FWS frequently misses the mandatory deadline for 12–month findings. See Section 4 Deadline Litig., 716 F.Supp.2d at 1369.
The ESA provides for three possible 12–month findings: (1) that the petitioned action is “warranted”; (2) that the petitioned action is “not warranted”; or (3) that the petitioned action is “warranted but precluded,” meaning that it is a lower priority than other pending listing proposals. 16 U.S.C. § 1533(b)(3)(B). A 12–month finding of “warranted”—that is, a “positive” 12–month finding—requires publication in the Federal Register of a notice of proposed rulemaking to implement the petitioned listing action. Id. § 1533(b)(3)(B)(ii). A 12–month finding of “warranted but precluded” requires publication in the Federal Register of some explanation to justify FWS's decision. Id. § 1533(b)(3)(B)(iii). And a 12–month finding of “not warranted”—that is, a “negative” 12–month finding—ends the listing process for that petition.
FWS's failure to comply with the 90–day or 12–month deadlines in the listing process is judicially reviewable. See id. § 1540(g)(1)(C) (). Before filing suit, however, a potential plaintiff must comply with the ESA's “notice and delay” provision. The provision provides that “[n]o action may be commenced under subparagraph (1)(C) of this section prior to sixty days after written notice has been given to the Secretary” of the alleged violation. See id. § 1540(g)(2)(C).
Friends of Animals is a non-profit organization that “seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free-living and domestic animals.” Compl. [ECF No. 1] ¶ 5. In support of this mission, between October 2010 and March 2012, FOA (and its allies) filed a series of citizen petitions, calling on FWS to list thirty-nine different animal species worldwide as either endangered or threatened: ten species of sturgeon, id. ¶¶ 22–23, eleven species of tarantula, id. ¶ 27, fifteen species of bat, id. ¶ 31, the ridgeway hawk, id. ¶ 35, the Virgin Islands coqui (a type of frog), id. ¶ 39, and the Flores hawk-eagle, id. ¶ 43.
For years, FWS issued no response to any of these petitions. The most recently submitted petition was for the ten sturgeon species: FOA filed those petitions on March 8, 2012. Id. ¶ 22. Therefore, as of June 6, 2012—90 days later—FWS had missed the deadline for all thirty-nine of the requisite 90–day findings. Nevertheless, FOA—perhaps in acknowledgment that the 90–day deadline was only mandatory “[t]o the maximum extent practicable,” 16 U.S.C. § 1533(b)(3)(A) —let its petitions sit for over a full year more.
As of August 16, 2013, FWS still had not made 90–day findings for any of the thirty-nine petitions, some of which had been filed nearly three years earlier. On that day, FOA sent a “Notice of Intent to Sue” letter to FWS and the Department of the Interior. See Ex. A to Compl. (“Notice of Intent”) at 1. The letter purported to notify FWS that it was “in violation of the [ESA] by failing to take action ... concerning petitions to list 39 species ... as ‘threatened’ or ‘endangered’ under the ESA.” Id. at 1.
In the letter, FOA detailed its objections to FWS's failure to act with respect to each species. First, FOA explained that FWS must make a 90–day finding, “to the maximum extent practicable, within 90 days of receiving a petition.” Id. at 2. FOA then continued, pointing out that “ESA subsection 4(b)(3)(B) requires the Secretary to complete a status review and publish a finding, within 12 months of receiving a petition that has received a positive 90–day finding, as to whether a species warrants listing, warrants listing but is precluded due to higher priorities, or does not warrant listing.” Id. FOA clarified that “both initial 90–day petition finding[s] and 12–month listing determination[s] must be made within 12 months of the date on which the petition is received.” Id. (citing Badgley, 309 F.3d at 1176 ). Finally, with respect to all 39 species, FOA explained that both “the 90–day petition finding and 12–month listing determinations” were past due, and that, therefore, “the Secretary is in violation of subsection[s] 4(b)(3)(A) and 4(b)(3)(B).” Id.
Just over a month later, FWS made a “positive” 90–day finding for all ten species of sturgeon appearing in FWS's petitions. See Compl. ¶ 25; 78 Fed.Reg. 58,507 (Sept. 24, 2013) ().
On October 21, 2013—after the 60–day delay window had passed since FOA's notice letter—FOA filed this suit. At that time, more than a year had passed since the filing date of all thirty-nine petitions, but FWS had not made any 12–month findings. Compl. ¶ 49. And other than with respect to the 10 sturgeon species subject to the positive 90–day findings that September, FWS had not made any other 90–day findings—positive or negative. Id. ¶¶ 25, 29, 33, 37, 41, 45. Thereafter, on December 3, 2013, FWS made positive 90–day findings for all eleven tarantula species in FOA's petitions. See 78 Fed.Reg. 72,622 (Dec. 3, 2013).
On December 30, 2013, FWS filed a motion to dismiss FOA's complaint for lack of subject-matter jurisdiction, arguing (1) that FOA had not suffered an injury in fact sufficient to confer Article III standing, and (2) that FOA's 60–day notice letter was defective. Defs.' Mot. to Dismiss [ECF No. 12] ( ). FWS also moved to dismiss for failure to state a claim with respect to the eighteen species for which FWS had not yet made a 90–day determination, arguing that there could be no mandatory duty to issue a 12–month finding before positive 90–day findings had been issued. Id. at 31.
On January 22, 2014, FWS issued positive 90–day findings for the remaining eighteen species in FOA's petitions (fifteen bat species, the Ridgeway hawk, the Virgin Islands coqui, and the Flores hawk-eagle). See 79 Fed.Reg. 3,559 (Jan. 22, 2014). FWS filed a...
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