FRIENDS OF ANIMALS, Plaintiff, v. Daniel M. ASHE, in his official capacity as Director of the United States Fish & Wildlife Service, et al., Defendants.
Civil Action No. 13-1607 (JDB)
United States District Court, District of Columbia.
Signed June 23, 2014
Petitioner also invokes the equal protection clause by alleging that he was “discriminated against” when he was “denied the ... opportunity to be sent to a halfway house or home confinement,” but he compares himself with D.C.Code offenders housed in the U.S. Bureau of Prisons.1 Pet. at 4. An equal protection violation occurs when the government treats “similarly situated” individuals differently without a rational basis. Women Prisoners of the District of Columbia Dep‘t of Corrections v. District of Columbia, 93 F.3d 910, 924 (D.C.Cir.1996). Prisoners, such as petitioner, who are housed in District of Columbia facilities are “not similarly situated to those prisoners [housed in BOP facilities], because [they] [are] in the custody of a different agency of government.” Noble v. U.S. Parole Comm‘n, 194 F.3d 152, 154-55 (D.C.Cir.1999). Hence, the Courts finds petitioner‘s equal protection claim to be meritless as well.
CONCLUSION
For the foregoing reasons, the Court concludes (1) that it lacks jurisdiction over petitioner‘s claim challenging his Superior Court sentence and (2) that the petition fails to provide a basis for issuing either the writ of habeas corpus or a show cause order to petitioner‘s warden. Hence, the petition will be denied and this case will be dismissed. A separate order accompanies this Memorandum Opinion.
Daniel J. Pollak, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
JOHN D. BATES, United States District Judge
Plaintiff Friends of Animals (“FOA“) brings this action against defendants Daniel M. Ashe (in his official capacity as Director of the United States Fish & Wildlife Service) and Sally Jewell (in her official capacity as Secretary of the Interior) (collectively, “FWS” or “the Secretary“). FOA alleges that FWS failed to make timely determinations on citizen petitions to list thirty-nine species as either endangered or threatened under the
BACKGROUND
I. Statutory And Regulatory Background
The Endangered Species Act (“ESA“) charges the Secretary of the Interior with the responsibility of classifying animal or plant species as “endangered” or “threatened.”
Upon receipt of such a “citizen petition,” FWS is subject to a series of statutory deadlines of varying flexibility. From the filing date, FWS has 90 days to make an initial determination “whether the petition presents substantial information indicating that the petitioned action may be warranted.”
This initial determination—called a “90-day finding“—may be positive or negative. A “negative” 90-day finding—that is, when FWS determines that the petition does not “present[] ... substantial information” suggesting that listing the species “may be warranted“—ends the listing process for that citizen petition. See
The ESA provides for three possible 12-month findings: (1) that the petitioned action is “warranted“; (2) that the petitioned action is “not warranted“; or (3) that the petitioned action is “warranted but precluded,” meaning that it is a lower priority than other pending listing proposals.
FWS‘s failure to comply with the 90-day or 12-month deadlines in the listing process is judicially reviewable. See
II. Factual And Procedural Background
Friends of Animals is a non-profit organization that “seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free-living and domestic animals.” Compl. [ECF No. 1] ¶ 5. In support of this mission, between October 2010 and March 2012, FOA (and its allies) filed a series of citizen petitions, calling on FWS to list thirty-nine different animal species worldwide as either endangered or threatened: ten species of sturgeon,
For years, FWS issued no response to any of these petitions. The most recently submitted petition was for the ten sturgeon species: FOA filed those petitions on March 8, 2012. Id. ¶ 22. Therefore, as of June 6, 2012—90 days later—FWS had missed the deadline for all thirty-nine of the requisite 90-day findings. Nevertheless, FOA—perhaps in acknowledgment that the 90-day deadline was only mandatory “[t]o the maximum extent practicable,”
As of August 16, 2013, FWS still had not made 90-day findings for any of the thirty-nine petitions, some of which had been filed nearly three years earlier. On that day, FOA sent a “Notice of Intent to Sue” letter to FWS and the Department of the Interior. See Ex. A to Compl. (“Notice of Intent“) at 1. The letter purported to notify FWS that it was “in violation of the [ESA] by failing to take action ... concerning petitions to list 39 species ... as ‘threatened’ or ‘endangered’ under the ESA.” Id. at 1.
In the letter, FOA detailed its objections to FWS‘s failure to act with respect to each species. First, FOA explained that FWS must make a 90-day finding, “to the maximum extent practicable, within 90 days of receiving a petition.” Id. at 2. FOA then continued, pointing out that “ESA subsection 4(b)(3)(B) requires the Secretary to complete a status review and publish a finding, within 12 months of receiving a petition that has received a positive 90-day finding, as to whether a species warrants listing, warrants listing but is precluded due to higher priorities, or does not warrant listing.” Id. FOA clarified that “both initial 90-day petition find-ing[s] and 12-month listing determination[s] must be made within 12 months of the date on which the petition is received.” Id. (citing Badgley, 309 F.3d at 1176). Finally, with respect to all 39 species, FOA explained that both “the 90-day petition finding and 12-month listing determinations” were past due, and that, therefore, “the Secretary is in violation of subsection[s] 4(b)(3)(A) and 4(b)(3)(B).” Id.
Just over a month later, FWS made a “positive” 90-day finding for all ten species of sturgeon appearing in FWS‘s petitions. See Compl. ¶ 25; 78 Fed.Reg. 58,507 (Sept. 24, 2013) (“[W]e determine that the petition presents substantial scientific or commercial information indicating that listing these 10 sturgeon species as endangered or threatened may be warranted.“).
On October 21, 2013—after the 60-day delay window had passed since FOA‘s notice letter—FOA filed this suit. At that time, more than a year had passed since the filing date of all thirty-nine petitions, but FWS had not made any 12-month findings. Compl. ¶ 49. And other than with respect to the 10 sturgeon species subject to the positive 90-day findings that September, FWS had not made any other 90-day findings—positive or negative. Id. ¶¶ 25, 29, 33, 37, 41, 45. Thereafter, on December 3, 2013, FWS made positive 90-day findings for all eleven tarantula species in FOA‘s petitions. See 78 Fed.Reg. 72,622 (Dec. 3, 2013).
On December 30, 2013, FWS filed a motion to dismiss FOA‘s complaint for lack of subject-matter jurisdiction, arguing (1) that FOA had not suffered an injury in fact sufficient to confer Article III standing, and (2) that FOA‘s 60-day notice letter was defective. Defs.’ Mot. to Dismiss [ECF No. 12] (“Defs.’ Mot“). FWS also moved to dismiss for failure to state a claim with respect to the eighteen species for which FWS had not yet made a 90-day determination, arguing that there could be no mandatory duty to issue a 12-month
On January 22, 2014, FWS issued positive 90-day findings for the remaining eighteen species in FOA‘s petitions (fifteen bat species, the Ridgeway hawk, the Virgin Islands coqui, and the Flores hawk-eagle). See 79 Fed.Reg. 3,559 (Jan. 22, 2014). FWS filed a notice with the Court updating the factual record and withdrawing its Rule 12(b)(6) argument with respect to these eighteen species. See Defs.’ Notice of Publication [ECF No. 18]. As FWS (implicitly) acknowledged, because it had now issued positive 90-day findings with respect to all thirty-nine species in the petitions at issue, it was now under a mandatory duty to issue 12-month findings for all of those species. Id. at 2. At that point—and to this day—FWS had not issued the required 12-month findings. FWS maintains that its subject-matter jurisdiction arguments were unaffected by this development. Id.
LEGAL STANDARD
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, the Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
Under
To survive a
DISCUSSION
The bulk of the parties’ briefing is directed to the question whether FOA has properly alleged an injury-in-fact that would confer standing under Article III of the
I. The ESA‘s 60-Day Notice Requirement Is Mandatory And Strictly Construed.
The ESA provides a private cause of action “against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title“—that is, the ESA‘s “listing” provisions for endangered species—“which is not discretionary with the Secretary.”
In Hallstrom, the plaintiffs asked the Court to adopt a “flexible or pragmatic construction” of a nearly identical notice provision in another environmental statute.1 Id. at 26. The Court
In response to the argument that it was inequitable to dismiss a lawsuit on such technical grounds, the Supreme Court noted that, “[u]nlike a statute of limitations, RCRA‘s 60-day notice provision is not triggered by the violation,” but rather, plaintiffs “have full control over the timing of their suit: they need only give notice to the appropriate parties and refrain from commencing their action for at least 60 days.” Id. at 27. For that reason, the Court held that “[t]he equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners’ failure to take the minimal steps necessary to preserve their claims.” Id. (internal quotation marks omitted). The Court continued, noting that environmental citizen suits are “generally filed by trained lawyers who are presumed to be aware of statutory requirements,” and “[u]nder these circumstances, it is not unfair to require strict compliance with statutory conditions precedent to suit.” Id. at 28. Finally, to extinguish any lingering doubt as to whether district courts had discretion to excuse imperfect compliance with these notice provisions, the Supreme Court concluded as follows: “[W]e hold that the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a district court may not disregard these requirements at its discretion.” Id. at 31.
Unsurprisingly, lower courts have given effect to Hallstrom‘s clarity on this point by consistently dismissing ESA citizen suits for failure to strictly comply with the 60-day notice and delay provision in
One particularly common pitfall is providing “pre-violation notice,” that is, when a plaintiff gives notice of an impending violation of the ESA—but before that violation has actually occurred. Courts dismiss on this ground, finding that pre-violation notice is inadequate under the statute (and Hallstrom‘s strict interpretive approach). See, e.g., Moden v. U.S. Fish & Wildlife Service, 281 F.Supp.2d 1193, 1206 (D.Or.2003) (“[A]t the time plaintiffs provided defendants with notice, the agency had not considered the petition to delist. Therefore, because the agency had not acted on the petition at the time of notice, plaintiffs could not have given the Secretary notice of an unlawful action.“);
II. FOA‘s “Pre-Violation” Notice Was Defective.
FOA‘s notice letter (attached as an exhibit to the complaint) is dated August 16, 2013. Notice of Intent at 1. As of that date, although every one of the thirty-nine listing petitions had already been pending for more than one year, FWS had made no statutory findings: it had made no 90-day findings, nor any 12-month findings. See generally Notice of Intent. So FOA issued the following warning to FWS: “If you do not promptly issue the overdue 90-day findings and 12-month listing determinations described above, Friends of Animals intends to file suit to require that you do so.” Id. at 7.
When it came time to actually file this lawsuit, however, FOA followed through on this threat only in part. Specifically, it challenged only FWS‘s failure to make the thirty-nine 12-month findings. See Compl. ¶ 49 (“The Secretary failed to make a finding indicating whether the petitioned actions were warranted within 12 months after receiving petitions to list the thirty-nine (39) Petitioned Species as ‘threatened’ or ‘endangered’ under the ESA.“); Compl. Prayer for Relief ¶ 1 (seeking a declaration that “the Secretary has violated the ESA by not issuing 12-month findings“). Although FOA mentioned the overdue 90-day findings as relevant factual background in support of its 12-month claims, it made no allegation that FWS actually violated the ESA by its failure to make the requisite 90-day findings.2 This was likely an intentional and strategic decision: although the 12-month deadline is mandatory and inflexible, see Badgley, 309 F.3d at 1175-76, the 90-day deadline is applicable only “to the maximum extent practicable,”
But, due to its failure to issue any 90-day findings, FWS was not yet in violation of any of the 12-month deadlines. The reason is simple: a duty to issue a 12-month finding is only triggered by a positive 90-day finding. See, e.g., Conservation Force, 715 F.Supp.2d at 103-04 (holding that a “12-month finding [is] required only where [a] 90-day finding concludes that a petition ‘presents substantial information indicating that the petitioned action may be warranted,‘” and that, until that time, “the need for a 12-month finding remained speculative“) (quoting
Critically, on August 16, 2013, it was simply impossible for FWS to know when, if ever, it would violate the ESA‘s 12-month deadline. FOA‘s notice, then, failed to serve the purpose of the ESA‘s 60-day notice and delay requirement, which is to “give[] the alleged violator an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” Hallstrom, 493 U.S. at 29 (internal quotation marks omitted). Hence, this Court joins the others around the country that have held that “pre-violation” notice of possible future violations is insufficient to satisfy the ESA‘s 60-day notice requirement. See, e.g., Moden, 281 F.Supp.2d at 1206; Kern County, 2002 WL 34236869, at *13; see also Conservation Force, 715 F.Supp.2d at 103-04; Friends of Animals v. Salazar, 670 F.Supp.2d at 13.
To be sure, FOA‘s letter would have been sufficient to provide notice for intent to sue over FWS‘s failure to issue 90-day findings. But “[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.” Conservation Force, 715 F.Supp.2d at 103-04. By the same token, it is true that all thirty-nine 90-day findings were, ultimately, positive. And because all of these findings came more than a year after the petition date, FWS immediately came to be in violation of the mandatory 12-month deadline on the day those 90-day findings were issued,
One additional complexity remains. The government moves to dismiss for lack of subject-matter jurisdiction under
Those decisions—though often thin on explanation—have occasionally relied on rhetorical hints from Hallstrom itself, as well as the statute‘s text, which focuses on what sort of “action[s] may be commenced.”
In any event, the issue is purely academic in this case: under Hallstrom, dismissal is mandatory, however characterized. For this reason, the Court will dismiss plaintiff‘s complaint for failure to comply with the ESA‘s 60-day notice requirement. The difficult question of
CONCLUSION
For the reasons set forth above, FWS‘s motion to dismiss will be granted, and FOA‘s complaint will be dismissed. A separate Order has issued on this date.
JOHN D. BATES
UNITED STATES DISTRICT JUDGE