California District Court Dismisses ESA Section 7 Case for Failure to Allege that Agency Action Took Place on the "High Seas"

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On August 12, a judge for the Northern District of California granted (pdf) a motion to dismiss claims alleging that a federal agency violated section 7 of the Endangered Species Act (ESA) by failing to consult with federal wildlife agencies concerning the potential effects of its actions on listed species in the Great Barrier Reef.

The case concerned $4.8 billion in funding for the construction of two liquefied natural gas projects in and around Australia’s Great Barrier Reef World Heritage Area. See Center for Biological Diversity, et al. v. Export-Import Bank of the United States, No. C 12-6325 SBA, 2014 U.S. Dist. LEXIS 111762 (N.D. Cal. Aug. 12, 2014). The funding came from the Export-Import Bank of the United States (Bank), a federal agency. The proposed projects would include the drilling of gas wells, installation of pipeline, and exportation of gas worldwide. Plaintiffs alleged that the Bank was required to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) under section 7 of the ESA to determine whether the projects would have adverse effects on threatened or endangered species or their habitat. Facilities for both natural gas projects would be located within designated habitat for the endangered dugong (Dugong dugon) and within habitat supporting the threatened green sea turtle (Chelonia mydas), endangered loggerhead sea turtle (Caretta caretta), and threatened saltwater crocodile (Crocodylus porosus).

Section 7 requires that a federal agency consult with the Services over whether an action authorized or funded by that agency may affect a listed species. However, the consultation requirement only applies to agency actions that occur in the United States or “upon the high seas.” Although plaintiffs argued that the projects funded by the Bank would occur on the high seas, the District Court dismissed this argument because plaintiffs had not alleged any facts in their complaint showing that the projects would occur on the high seas. The court granted leave to plaintiffs to amend their complaint to allege additional facts.

Plaintiffs also directly challenged the regulation limiting section 7 to the United States and the “high seas,” asserting that the ESA does not limit the geographic scope of the consultation requirement. The court rejected this argument, noting that the statute of limitations to challenge agency regulations is six years and that plaintiffs had not petitioned the Services to amend the regulation.

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