Salmon Spawning & Recovery Alliance v. U.S., Slip Op. 09-40., Court No. 06-00191.

CourtU.S. Court of International Trade
Citation626 F.Supp.2d 1277
Docket NumberSlip Op. 09-40., Court No. 06-00191.
PartiesSALMON SPAWNING & RECOVERY ALLIANCE, et al., Plaintiffs, v. UNITED STATES, Defendant.
Decision Date13 May 2009

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626 F.Supp.2d 1277
Slip Op. 09-40., Court No. 06-00191.
United States Court of International Trade.
May 13, 2009.

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Marten Law Group PLLC (Svend Brandt-Erichsen) for Plaintiffs.

Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. Davidson, Director;

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Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini), for Defendant.



The action filed by Plaintiffs Salmon Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively, the "Plaintiffs") against Defendant United States appears anew before the court on remand from the Federal Circuit. Specifically, the mandate directs the court to determine whether (1) a claim made pursuant only to Section 7(a)(2) of the Endangered Species Act ("ESA") falls within the exclusive jurisdiction of the U.S. Court of International Trade ("CIT") under 28 U.S.C. §§ 1581(i)(3) or 1581(i)(4); and (2) the CIT's broad residual jurisdiction encompassed in § 1581(i) conflicts with Section 11 of the ESA. Plaintiffs accompanied their brief on these issues with a Motion to Transfer the case to the U.S. District Court for the Western District of Washington, the venue where this action initially arose.1 For the reasons stated herein, the court finds that (1) a Section 7(a)(2) claim, on its own, fails to invoke this Court's subject matter jurisdiction under § 1581(i) and that (2) the citizen-suit provision of the ESA, Section 11, and § 1581(i) are not in conflict. Accordingly, Plaintiffs' Motion to Transfer is granted.

I. Background

A. The Endangered Species Act

Congress passed the ESA "to halt and reverse the trend toward species extinction ...." Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The central theme of the legislation is "the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources." Tennessee Valley Authority, 437 U.S. at 177, 98 S.Ct. 2279 (quotations & citation omitted). The ESA makes clear that Congress has bestowed upon all Federal departments and agencies the duty of "conserv[ing] endangered species and threatened species" and requires that they use "their authorities in furtherance of" this purpose.2 16 U.S.C. § 1531(c)(1).

Section 4 of the ESA states that the Secretary of Commerce, or of the Interior, whichever is appropriate, is responsible for determining and listing which species are "threatened" or "endangered."3 16 U.S.C. §§ 1532(15), 1533(a). The Secretary must also determine the "critical habitat" of each listed species and "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." § 1533(a)(3)(A)-(B)(i), (d).

Section 7(a)(2) requires that every federal agency, "in consultation with and with the assistance of the Secretary," must "insure that any action authorized, funded, or carried out by such agency ... is not

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likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary" to be critical. § 1536(a)(2). In effect, Section 7(a)(2) describes the interagency consultation requirements under the ESA, containing both substantive and procedural elements that "compel[ ] agencies not only to consider the effect of their projects on endangered species, but [also] to take such actions as are necessary to insure that species are not extirpated as the result of federal activities." Tennessee Valley Authority, 437 U.S. at 188 n. 34, 98 S.Ct. 2279.

Section 11(g)(1)(A), which forms part of the citizen-suit provision of the ESA, expressly grants any person the right to bring a civil action "to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of [the ESA] or regulation issued under the authority thereof...." 16 U.S.C. § 1540(g)(1)(A). However, the Supreme Court has explained that, in the absence of final agency action, this provision does not provide independent jurisdiction to challenge an agency's implementation or enforcement of the ESA. Bennett v. Spear, 520 U.S. 154, 172-74, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Section 11(g)(1) also grants the district courts with jurisdiction to enforce any provision of, or regulation issued under, the ESA. § 1540(g)(1).

B. Threatened and Endangered Salmon

Twenty-six populations of West Coast salmon and steelhead are listed by the National Marine Fisheries Service as threatened or endangered under the ESA.4 50 C.F.R. §§ 223.102, 224.101 (listing threatened and endangered salmon species, respectively). Protection is also afforded to certain hatchery-raised salmon. § 223.203(a). Customs has authored certain regulations that prohibit the importation of protected salmon. 19 C.F.R. § 12.26(g)(1). Despite these vigilant efforts, however, when some of the threatened or endangered salmon species swim north from the United States into Canadian waters, many are killed before they can return to U.S. rivers to spawn. Some of these dead salmon are ultimately imported into the United States by commercial shippers and American sport fishermen, arguably in violation of Section 9 of the ESA.5

C. Procedural History

In November 2005, Plaintiffs filed this action in the U.S. District Court for the Western District of Washington under both Section 11 of the ESA and the Administrative Procedure Act ("APA"). Plaintiffs alleged that Defendant violated (1) Section 9 of the ESA when they permitted endangered salmon and steelhead to be imported into the U.S. and (2) Section 7(a)(2) of the ESA, as well as Sections 702 and 706 of the APA, after they failed to complete the consultations that are required by § 1536(a)(2). See Compl. ¶¶ 45, 51. Defendant moved the district court to dismiss the complaint for lack of subject

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matter jurisdiction, but that court decided instead to transfer the action to the CIT. Salmon Spawning & Recovery Alliance v. Spero, No. C05-1878Z, 2006 WL 1207909, at *10 (W.D.Wash. May 3, 2006) ("Salmon I").

In March 2007, the court dismissed Plaintiffs' claims for lack of subject matter jurisdiction. Salmon II, 31 CIT at ___, 477 F.Supp.2d at 1303. First, noting that the power to enforce or implement the ESA "lie[s] solely within the agency's discretion," the court found that it could not hear Plaintiffs' Section 9 claim because federal courts do not have jurisdiction over the matter. Id., 31 CIT at ___, 477 F.Supp.2d at 1308. Additionally, the court determined that Plaintiffs lacked standing to bring the Section 7(a)(2) claim because a favorable decision was unlikely and, therefore, Plaintiffs injury would not be redressed. Id., 31 CIT at ___, 477 F.Supp.2d at 1310. An appeal to the Federal Circuit followed.

The Federal Circuit affirmed the court's dismissal of Plaintiffs' Section 9 claim, specifically noting that an agency's decision to implement or enforce certain provisions of the ESA are not reviewable under either the APA or Section 11 of the ESA. Salmon Spawning & Recovery Alliance v. U.S. Customs & Border Prot., 550 F.3d 1121, 1128-30 (Fed.Cir.2008) (quotations & citations omitted) ("Salmon III"). However, the Plaintiffs were found to have standing to bring the Section 7(a)(2) claim and the court's decision on that issue was reversed. After it was explained that the court erred in its reading of the redressability prong of the standing analysis, the Federal Circuit determined that Plaintiffs have standing given that "[a] favorable decision in the current case would be a holding that defendants do have an obligation to consult under section 7 regarding their failure to enforce the endangered salmon import ban." Salmon III, 550 F.3d at 1131. The case was remanded to this court to decide two issues of first impression: (1) whether a claim made pursuant to Section 7(a)(2) alone falls within the exclusive subject matter jurisdiction of the CIT under §§ 1581(i)(3) or (i)(4); and (2) whether Section 11 is in conflict with § 1581(i). Id. at 1133-35.

II. Standard for Transfer

The transfer of a civil action from the Court for lack of subject matter jurisdiction is permitted where it is in the "interest of justice" and if such transfer is to a court in which the action could have been brought at the time it was filed. 28 U.S.C. § 1631. It is in the interest of justice to transfer an action if it preserves a party's right to be heard on its potentially meritorious claim. See Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed.Cir. 1987). Moreover, pursuant to the Federal Circuit's instructions in Salmon III, this court must transfer the action to the U.S. District Court for the Western District of Washington if it finds that it lacks subject matter jurisdiction over Plaintiffs' Section 7(a)(2) claim. See 550 F.3d at 1135.

III. Discussion

A fundamental question in any action before the Court is whether subject matter exists over the claims presented. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citation omitted). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact...

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    • United States
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    ...also Earth Island Institute v. Albright, 147 F.3d 1352, 1357 (Fed. Cir. 1998); Salmon Spawning & Recovery Alliance v. United States, 626 F. Supp. 2d 1277, 1280 (Ct. Int. Trade 2009). The instant action is not analogous to Bennett on this point. In contrast to the type of suit prohibited by ......

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