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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Federal Circuit wades into salmon wars, may consider merits of failure to consult on import enforcement

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Salmon Spawning and Recovery Alliance v. U.S. Customs and Border Protection, No. 2007-1444, 2008 WL 2736031  (Federal Circuit, July 15, 2008)(Excerpts of judicial opinion below).

SalmonCustomsInspection.jpg
Photo of a salmon "freshness" inspection at Miami International Airport, from the Interagency Working Group on Import Safety

SUMMARY: This case concerns the Endangered Species Act ("ESA") and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively "Salmon Spawning" or "plaintiffs") appeal a final judgment of the Court of International Trade dismissing their complaint against various federal agencies and officials (the "defendants") for lack of subject matter jurisdiction. Salmon Spawning & Recovery Alliance v. Basham, No. 06-00191 (Ct. Int'l Trade Mar. 6, 2007) (Salmon Spawning II). The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA.  We conclude that the Court of International Trade erred in dismissing the case for lack of standing, and we remand to the court to determine in the first instance whether plaintiffs' claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade.

FACTUAL AND PROCEDURAL BACKGROUND: Included in the species that have been designated endangered or threatened are twenty-six populations of West Coast salmon and steelhead (the "ESA-listed salmon"). 50 C.F.R. § 223.1102(c). Customs and Fish & Wildlife officials are stationed at the ports of entry into the United States and are tasked with enforcing the importation ban on the ESA-listed salmon...  Despite these regulations, the complaint, which at this stage in the proceedings we must accept as true, alleges that "[n]either the U.S. Customs and Border Protection, the U.S. Fish & Wildlife Service, nor [Marine Fisheries] enforce the ESA prohibition against the import into the United States of ESA-listed salmon caught in Canada."...  The Court of International Trade did not reach the issue of whether it was the proper forum to adjudicate Salmon Spawning's claims. Rather, it dismissed the case for lack of subject matter jurisdiction on the grounds that no federal court had jurisdiction over the claims. The court found that it was without jurisdiction over the plaintiffs' section 9 claim because the exercise of the agency's enforcement powers "lie solely within the agency's discretion."  Salmon Spawning II, at *10 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)). Furthermore, the trial court concluded that plaintiffs had no standing to bring their section 7 claim (in which plaintiffs allege a failure to engage in ESA consultation on the importation enforcement).

RULING ON SECTION 9 ENFORCEMENT CLAIM (upholding lack of jurisdiction): To the extent that Salmon Spawning has brought a cause of action alleging that defendants have violated section 9 by allowing the importation of ESA-listed salmon, the district court properly dismissed the claim for lack of subject matter jurisdiction. [FN4] In substance the claim alleges that the defendants have violated section 9's prohibition on the importation of endangered species by failing to enforce the ban. The Supreme Court established in Heckler v. Chaney, 470 U.S. 821 (1985), that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Id. at 831. Accordingly, an agency's decision not to undertake enforcement actions is "presumptively unreviewable" under the APA. Id. at 832;see 5 U.S.C. § 701(a)(2)...  Rather, the statute makes clear the discretionary nature of the defendants' enforcement powers stating only that officers "may detain for inspection and inspect any package, crate, or other container, including its contents, and all accompanying documents, upon importation"; "may make arrests"; and "may search and seize."

RULING ON SECTION 7 CONSULTATION CLAIM (reversing dismissal, and rejecting lack of redressability findings):  The Court of International Trade held that plaintiffs' section 7 claim did not satisfy the "redressability" prong of the standing analysis. The trial court concluded that there was no obligation under section 7 for the federal defendants to consult regarding their decision not to enforce the endangered salmon ban because the consultation requirement is only triggered by affirmative action, not a failure to act...  Rather than focus on whether such a favorable decision would likely provide plaintiffs' redress, the trial court mistakenly reasoned that there would not be a favorable result and thus Salmon Spawning would not be entitled to any relief. This is not an issue of standing but rather a question on the merits. See Litecubes, LLC v. N. Light Prods., 523 F.3d 1353, 1360 (Fed.Cir.2008) ( "Subject matter jurisdiction does not fail simply because the plaintiff might be unable to ultimately succeed on the merits." (citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998))...  Moreover, plaintiffs' section 7 claim is attempting to enforce a procedural right. Such rights can be asserted "without meeting all the normal standards for redressability and immediacy," as long as "the procedures in question are designed to protect some threatened concrete interest of [the plaintiff] that is the ultimate basis of his standing." Lujan, 504 U.S. at 573 n. 7 & n. 8...  Thus, because consultation could require the defendants to more actively enforce the import ban, consultation could protect the plaintiffs' interests in the survival of the ESA-listed salmon, and it is precisely this interest which the procedure was designed to protect. In such a situation, a claim alleging a violation of the procedural requirements of section 7(a)(2) satisfies the redressability prong of standing. See Defenders of Wildlife, 420 F.3d at 958 (concluding that the standing requirements for procedural harm were met in a section 7 claim because "the use of improper section 7 consultation ... lessens the likelihood that the impact of the proposed action on listed species and their habitats will be recognized and accounted for in making the transfer decision"); Glickman, 156 F.3d at 616 (finding plaintiffs had standing to bring a procedural claim under section 7(a)(2) because "the procedures in question were designed to protect Sierra Club's threatened concrete interest in this case").

RULING ON EXCLUSIVE JURISDICTION OF THE FEDERAL CIRCUIT (an especially noteable sua sponte ruling disregarding the agreement of the parties on jurisdiction):  ...for the Court of International Trade to have jurisdiction over the current action, plaintiffs' section 7 claim must fall within the court's exclusive jurisdiction under 28 U.S.C. § 1581. There are two possible sources of Court of International Trade jurisdiction for the claim: (1) § 1581(i)(3), which provides the Court of International Trade with exclusive jurisdiction over civil actions that "arise[ ] out of any law of the United States providing for ... embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety" and (2) § 1581(i)(4), which provides the Court of International Trade with exclusive jurisdiction over civil actions arising from "administration and enforcement with respect to the matters" referred to in § 1581(i)(3). See Sakar Int'l Inc. v. United States, 516 F.3d 1340, 1346 (Fed.Cir.2008)...  The issue of whether plaintiffs' section 7 claim falls within the Court of International Trade's exclusive jurisdiction, or instead should be brought in a district court, is one of first impression for this court and it raises difficult, novel issues concerning the scope of the Court of International Trade's jurisdiction. The parties have not briefed the issue ... we believe that the better course of action is to remand the case to the Court of International Trade to determine in the first instance whether the section 7 claim falls within its exclusive jurisdiction. In making this determination, the court will need to consider whether the suit "arises out of any law of the United States providing for ... embargoes or other quantitative restrictions on the importation of merchandise" or for the "administration and enforcement with respect" to such embargoes under § 1581(i), and also whether there is a conflict between § 1581(i) and section 11 of the ESA which vests jurisdiction over citizen suits brought pursuant to the ESA with the district courts, 16 U.S.C. § 1540(g)