D.C. District Court Holds Pre-Violation Notice Ineffective

by Nossaman LLP
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On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated to issue a finding stating "whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted."  16 U.S.C. 1533(b)(3)(A).  The ESA requires the Service, to "the maximum extent practicable," to issue this finding "within 90 days after receiving the petition[.]"  Because of this generally applicable 90-day deadline, this finding is often referred to as the 90-day finding.  Further, if the Service finds that a listing "may be warranted," the ESA requires that the Service issue a second finding within 12 months concluding that: (1) the petitioned action is not warranted; (2) the petitioned action is warranted; or (3) the petitioned action is warranted but precluded by higher priority species.  16 U.S.C. 1533(b)(3)(B).  Because the Service is given a strict 12 months to issue this second finding, this finding is often referred to as the 12-month finding. 

If the Service fails to comply with these statutory deadlines, a citizen suit may be filed in federal court.  16 U.S.C. 1540(g)(1)(C).  However, at least 60 days before filing such a lawsuit, a citizen plaintiff must serve the Secretary of the Department of Interior with a notice of intent to sue stating, among other things, the alleged violation(s).  16 U.S.C. 1540(g)(2)(C). 

In the case at issue, in August 2013, Plaintiff Friends of Animals (Plaintiff) sent the Service a pre-litigation notice stating that the Service had failed to timely issue a 90-day finding and 12-month finding for 39 separate species.  In October 2013, more than 60-days after service of the notice, Plaintiff filed suit alleging that the Service had failed to timely issue 12-month findings for all 39 species.  Thereafter, the Service moved to dismiss the complaint for lack of jurisdiction.

Strictly applying the ESA's pre-litigation notice requirement, the district court granted the motion to dismiss.  The court explained that under the ESA, notice of the "statutory violation" must be served 60 days prior to the commencement of a lawsuit.  In this case, however, the basis for the litigation, the failure to issue timely 12-month findings, did not exist when the notice was served.  The court explained that as of the date of the notice, the Service had not issued 90-day findings for any of the 39 species.  Thus, as the deadline for a 12-month finding is triggered only when a 90-day finding has been issued, the Service as a matter of law could not have failed to timely issue a 12-month finding as of the date of the notice.   

In an attempt to avoid dismissal, Plaintiff argued that its technical failure should not preclude the court from proceeding to the merits, because 90-day findings had since been issued for all 39 species, and it had been more than a year since the last 90-day finding was issued and the Service had not issued a single 12-month finding.  The court, however, rejected this argument, noting that the lower courts have consistently dismissed "ESA citizen suits for failure to strictly comply with the 60-day notice and delay provision," and that as such Plaintiff's "pre-violation notice" was simply inadequate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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