Friends of Animals v. Ashe
51 F. Supp. 3d 77
D.D.C.2014Background
- Friends of Animals (FOA) filed citizen petitions between Oct 2010 and Mar 2012 asking FWS to list 39 species under the ESA; no 90-day or 12-month findings were issued for a long period.
- FOA sent a Notice of Intent to Sue on August 16, 2013 alleging violations for overdue 90-day and 12-month findings and waited the statutorily required 60 days.
- After the notice, FWS issued positive 90-day findings for the 10 sturgeon species (Sept 2013) and later for the remaining species (Dec 2013–Jan 2014); FWS had not issued any 12-month findings when FOA sued.
- FOA sued on Oct 21, 2013 (after its 60-day wait) seeking relief for FWS’s alleged failure to issue mandatory 12-month findings under 16 U.S.C. § 1533(b)(3)(B).
- The government moved to dismiss under Rule 12(b)(1) arguing FOA lacked Article III standing and that FOA’s 60-day notice was defective; FWS later withdrew a 12(b)(6) challenge after issuing positive 90-day findings for all species.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of ESA 60‑day notice | FOA argued its Aug 16 letter adequately notified FWS of overdue 12‑month findings and satisfied §1540(g)(2)(C) | FWS argued the notice was defective because at the time no 90‑day findings had been made so no 12‑month duty had yet arisen | Court held FOA's notice was defective as "pre‑violation" notice and dismissed for failure to comply with the 60‑day requirement |
| Pre‑violation notice doctrine | FOA contended the letter put FWS on notice of overdue obligations | FWS contended a plaintiff cannot give notice of a statutory violation that has not yet occurred | Court held pre‑violation notice insufficient; a 12‑month duty is triggered only by a positive 90‑day finding |
| Timeliness of claimed violation (trigger for 12‑month duty) | FOA alleged the 12‑month findings were overdue as of filing | FWS pointed out that 12‑month duty attaches only after a positive 90‑day finding; none existed on Aug 16, 2013 | Court agreed the 12‑month duty was not yet in effect on FOA's notice date, so notice failed its remedial purpose |
| Jurisdictional character of notice rule | FOA implicitly treated notice as a non‑jurisdictional claim‑processing requirement | FWS treated the failure as jurisdictional bar to suit | Court assumed the 60‑day notice is jurisdictional or otherwise mandatory under Hallstrom and dismissed without deciding the precise label |
Key Cases Cited
- Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir.) (describing 90‑day and 12‑month ESA listing deadlines and that 12‑month deadline is mandatory)
- Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (60‑day notice is a mandatory condition precedent to citizen suits)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (clarifying distinction between jurisdictional rules and claim‑processing rules)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (courts must carefully assess whether statutory limits are jurisdictional)
- Conservation Force v. Salazar, 715 F. Supp. 2d 99 (D.D.C.) (pre‑violation notice is inadequate to support suit for failure to make 12‑month findings)