Lack of 60-day notice sinks salmon case
McCrary v. Gutierrez, 528 F.Supp.2d 995 (N.D.Cal. Dec. 6, 2007)
SUMMARY: Plaintiff filed a petition with the National Marine Fisheries Service, seeking to revise the designation of a California Central Coast evolutionarily significant unit (ESU) of coho salmon. NMFS concluded that petition did not present substantial information that the action was warranted. Plaintiff filed suit, but the Court dismissed the case for a lack of jurisdiction, because Plaintiff failed to file the required 60-day notice prior to bringing suit.
NOTEABLE EXCERPT: “Section 1533 of the ESA specifically notes that the Secretary ‘shall make a finding as to whether the petition presents substantial scientific or commercial information.’ § 1533(b)(3)(A). The Ninth Circuit has held--in the context of the ESA--that when the statute mandates that the Secretary ‘shall’ act, such action is not within the Secretary's discretion. See Ass’n of California Water Agencies v. Evans, 386 F.3d 879, 883-884 (9th Cir. 2004). Thus, the subject matter of Plaintiff's sole cause of action falls within the citizen suit provision of the ESA, which allows for a civil cause of action when ‘there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary to the Secretary.’ 16 U.S.C. § 1540(g)(1)(C). Since the ESA allows Plaintiff to file a citizen suit, the APA cannot provide jurisdiction for Plaintiff's action.”
Adult coho salmon photo on NMFS webpage from California Dept. of Fish & Game