Another lesson in jurisdiction: District Court dismisses case based on inadequacy of notice of intent to sue
Conservation Force v. Salazar, Civil Action No. 09-496 (JDB), --- F.Supp.2d ----, 2010 WL 2244122 (D.D.C.)(Bates, District Judge)
NATURE OF THE ACTION: Plaintiffs-organizations and individuals that support sustainable hunting of the Canadian wood bison have brought suit alleging that the Secretary of the Department of the Interior has violated several provisions of the Endangered Species Act of 1973 (“ESA” or “the Act”), 16 U.S.C. § 1531 et seq., in his treatment of that species. The Canadian wood bison is currently listed as “endangered” under the Act. In 2007, the Canadian National Wood Bison Recovery Team petitioned to “downlist” the wood bison to “threatened,” but the Secretary has not yet made a final determination on the petition. Plaintiffs contend that the Secretary's failure to act on the petition violates the ESA. Several individual plaintiffs also challenge as unlawful the Secretary's failure to process their applications to import wood bison hunting trophies.
BACKGROUND: Plaintiffs, Conservation Force, brought this action in March 2009, a month after the Secretary issued his 90-day finding that the Team's downlisting petition “presents substantial scientific evidence and commercial information indicating that reclassifying the wood bison from endangered to threatened may be warranted.” Id. at 5910. They contend that the Secretary's failure to issue a 12-month finding on the Team's downlisting petition violates the ESA. The individual plaintiffs also claim that the Secretary's then-failure to process their applications to import wood bison hunting trophies violates both the ESA and their Due Process rights.
NOTICE OF INTENT TO SUE: Plaintiffs submitted an intent to sue letter on January 13, 2009, more than sixty days before they filed suit. But plaintiffs' intent to sue letter lists only two complaints related to the wood bison: the Secretary's then-failure to issue a 90-day finding on the downlisting petition, and the Secretary's then-failure to process plaintiffs' applications to import wood bison trophies. Plaintiffs do not dispute that their intent to sue letter does not explicitly challenge the Secretary's failure to issue a 12-month finding.
RULING: A notice of intent to sue for the failure to issue a 90-day finding does not provide proper notice of intent to sue for the subsequent failure to issue a 12-month finding. See Friends of Animals v. Salazar, 670 F.Supp.2d 7 (D.D.C.2009). In Friends of Animals... the court found that the plaintiff's “failure to provide sixty-days' notice prior to bringing its claims with respect to the 12-month finding means those claims must be dismissed.” Id. So too here, where the need for a 12-month finding remained speculative when the intent to sue letter was submitted on January 13, 2009... “The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue.” Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998)(internal quotation marks omitted). “When given notice, the agencies have an opportunity to review their actions and take corrective measures if warranted. The provision therefore provides an opportunity for settlement or other resolution of a dispute without litigation.” Id. (internal quotation marks omitted). This policy is borne out here: several weeks after plaintiffs sent their intent to sue letter, the Secretary issued the very 90-day finding that plaintiffs sought. See 74 Fed.Reg. at 5910. But plaintiffs gave the Secretary no such “opportunity to review his actions and take corrective measures” relating to his absent 12-month finding for the wood bison. The Court therefore will dismiss plaintiffs' claim that the Secretary's failure to issue a 12-month finding violates 16 U.S.C. § 1533... The Court will also dismiss, for the same reasons, plaintiffs' additional claims that the Secretary's failure to issue a 12-month finding on the wood bison petition violates several other ESA provisions.