Friends of Animals v. Salazar

• Decision Date: 20 November 2009
• Docket Number: Civil No. 09-707 (RMC).
• Citation: 670 F.Supp.2d 7
• Parties: FRIENDS OF ANIMALS, Plaintiff, v. Ken SALAZAR, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

670 F.Supp.2d 7

FRIENDS OF ANIMALS, Plaintiff, v. Ken SALAZAR, Secretary of the Interior, et al., Defendants.

Civil No. 09-707 (RMC).

United States District Court, District of Columbia.

November 20, 2009.

COPYRIGHT MATERIAL OMITTED

Michael R. Harris, Environmental Law Clinic, University of Denver-Law, Denver, CO, for Plaintiff.

Bradley Howard Oliphant, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

On April 16, 2009, the non-profit animal advocacy group Friends of Animals ("FOA") filed a Complaint against Ken Salazar, Secretary of the Interior; Sam D. Hamilton,¹ Director of the U.S. Fish and Wildlife Service; and the U.S. Fish and Wildlife Service ("FWS") pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1533 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq, seeking declaratory and injunctive relief. Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth below, Defendants' motion will be granted in part and denied in part.

I. FACTS

FOA petitioned FWS to list thirteen species of foreign macaws, parrots and cockatoos (the "Thirteen Species") as threatened or endangered under the ESA in January 2008.² FOA is a non-profit international advocacy organization that seeks to free animals from cruelty and exploitation around the world and engages in advocacy programs. It asserts that the Thirteen Species are highly sought after for sale in the caged-bird pet trade although they have dwindling populations and face possible extinction in their native habitats from legal and illegal harvesting. See Compl. [Dkt. #1] ¶ 5.

By letter dated October 27, 2008, "FOA notified the Secretary that he violated Section 4(b)(3)(A) of the ESA, 1[6] U.S.C. § 1533(b)(3)(A) by failing to determine within 90 days whether FOA's petition presents substantial information indicating that listing the parrots, macaws, and cockatoos may be warranted," thus providing its Notice of Intent ("NOI") to sue over the 90-day failure. Compl. ¶ 28; Compl., Attach. 1 ("Sixty-day Notice of Intent to Sue") at 3. The NOI asked the Service to issue the 90-day "preliminary determination as required by § 4(b)(3)(A) of the ESA ... and commence a twelve-month status review of the species." Id., Attach. 1 at 5. The NOI did not mention any failure to comply with the 12-month timetable because, at that point, twelve months had not passed since the petition was filed.

FOA filed this suit on April 16, 2009, seeking a declaration that FWS violated the ESA by failing to issue a timely 90-day finding on the Thirteen Species. In addition, the Complaint also seeks a declaration that FWS violated the ESA by failing to issue a timely 12-month finding on FOA's petition. Compl. ("Prayer for Relief") at 8.

On July 13, 2009, FWS placed on public inspection at the Federal Register its 90-Day Finding for the Thirteen Species. See Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs.' Mem.") [Dkt. #8] at 1. On that same day, FWS filed its motion to dismiss here. The finding was published in the Federal Register on July 14, 2009. See 90-Day Finding on a Petition to List 14 Parrot Species as Threatened or Endangered, 74 Fed.Reg. 33957 (July 14, 2009) (to be codified at 50 C.F.R. pt. 17).

II. LEGAL STANDARDS

When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C.Cir.2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008).

A motion to dismiss for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1). See Flores v. District of Columbia, 437 F.Supp.2d 22, 25 n. 4 (D.D.C.2006). That rule imposes on the Court "an affirmative obligation to insure that it is acting within the scope of its jurisdictional authority." Jones v. Ashcroft, 321 F.Supp.2d 1, 5 (D.D.C.2004). Under the Constitution, federal courts are limited to deciding "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). "Even where the litigation posed a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990) (quotation marks and citations omitted). While the movant has the burden of proving mootness, a plaintiff must defend a motion to dismiss brought under Rule 12(b)(1) by proving by a preponderance of the evidence that the court has jurisdiction to hear its claims. See Khadr, 529 F.3d at 1115.

A case is moot if a defendant can demonstrate that two conditions have been met: (1) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation; and (2) there is no reasonable expectation that the alleged wrong(s) will be repeated. Doe v. Harris, 696 F.2d 109, 111 (D.C.Cir.1982) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). When both conditions are satisfied, the case is moot because neither party has a legally cognizable interest in the final determination of the underlying facts and law. See Harris, 696 F.2d at 111.

III. ANALYSIS

A. Claims Pursuant to the ESA

1. Claims for Declaratory and Injunctive Relief

FOA alleges that Defendants violated 16 U.S.C. § 1533(b)(3)(A) by failing to make a timely 90-day finding as to whether FOA's January 2008 petition offered substantial information suggesting that the petitioned action may be warranted. On July 13, 2009, however, FWS placed the 90-day finding concerning FOA's petition on public inspection at the Federal Register, and the finding was published the next day. Defs.' Mem. at 1. As Defendants have taken the action FOA requested, FOA's claim for injunctive relief is moot. "[N]o justiciable controversy is presented ... when the question sought to be adjudicated has been mooted by subsequent developments." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Natural Res. Def. Council v. Nuclear Regulatory Comm'n, 680 F.2d 810, 813-14 (D.C.Cir.1982). FOA can no longer seek relief with respect to its claim that Defendants violated 16 U.S.C. § 1533(b)(3)(A).

FOA argues that its claim is covered by one of the exceptions to the mootness doctrine; namely, that the challenged situation is "`capable of repetition yet evading review.'" Pl.'s Resp. to Defs.' Mot. to Dismiss ("Pl.'s Resp.") [Dkt. #10] at 6 (quoting Biodiversity Legal Found. v. Babbitt, 63 F.Supp.2d 31, 33 (D.D.C.1999) (internal quotation marks omitted)("Biodiversity Legal I")). In Biodiversity Legal I, Judge James Robertson of this Court considered a factual scenario similar to the one presented here and found that although that plaintiff's claim for injunctive relief was mooted by the publication of a 90-day finding, its claim for a declaratory judgment that defendants had violated the statute was not moot because defendant FWS often failed to comply with statutory deadlines but "routinely cease[d] its offending conduct before any litigation [could] be resolved." 63 F.Supp.2d at 33.

This case is distinguishable from Biodiversity Legal I. FOA makes no claim, as did the Foundation, that it "monitors the Fish & Wildlife Service's stewardship of its obligations under the Endangered Species Act" and "has filed a number of suits challenging FWS delays in responding to citizen petitions." Id. at 32. To find a case justiciable under the "capable of repetition yet evading review exception" to the mootness doctrine, a court must find that "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C.Cir. 1985). Here, the "same complaining party" will not be "subjected to the same action again," as a 90-day initial finding is a one-time determination for any given petition. Additionally, a request for declaratory relief "does not affect [the Court's] mootness determination." Conyers, 765 F.2d at 1127; see Columbian Rope Co. v. West, 142 F.3d 1313, 1316 (D.C.Cir.1998) (finding a claim that the Small Business Administration had improperly awarded a contract non-justiciable where the contract had already been performed: "[N]either injunctive relief preventing the government from making any further orders on the contract nor declaratory relief on the legality of the contract would affect the parties in any meaningful way."). If the facts underlying the action change such that there is no immediate controversy between the parties, a claim for declaratory judgment fails. Conyers, 765 F.2d at 1128. Thus, FOA's claims seeking both injunctive and declaratory relief with respect to Defendants' alleged violations of 16 U.S.C. § 1533(b)(3)(A) must be dismissed.

FOA also alleges that Defendants have violated 16 U.S.C. § 1533(b)(3)(B) by...