Washington State District Court Holds Claims Brought Under Citizen Suit Provision Of The Endangered Species Act Are Not Limited To Record Review


In Northwest Coalition for Alternatives to Pesticides v. U.S. Environmental Protection Agency, 2013 U.S. Dist. LEXIS 11955, *1 (Jan. 28, 2013), the United States District Court for the Western District of Washington held (pdf) that claims arising under the citizen suit provision of the Endangered Species Act (ESA) are not subject to the strictures of the record review doctrine. The court held that, since the ESA citizen suit provision creates an express, adequate remedy at law, and the Administrative Procedure Act (APA) only applies when there is “no other adequate remedy in court,” plaintiffs claims were not governed by the APA, and the court’s review was not limited to the administrative record.

Plaintiffs had filed suit against the Environmental Protection Agency (EPA), asserting that the EPA violated section 7 and section 9 of the ESA by failing to implement the reasonable and prudent alternatives and reasonable and prudent measures set forth in two biological opinions regarding the effects of certain pesticides on species listed under the ESA. Prior to completing the briefing on a pending motion for summary judgment, the parties stipulated that the court would preliminarily resolve a dispute regarding whether plaintiffs’ claims were limited to review of the administrative record.

In holding for plaintiffs, the court relied on Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), and Washington Toxics v. EPA, 413 F.3d 1024 (9th Cir. 2005). In those cases, plaintiffs’ brought claims under the ESA citizen suit provision, challenging a federal agency’s failure to consult under section 7 of the ESA. In both cases, the United States Court of Appeals for the Ninth Circuit held that, because the ESA citizen suit provision independently authorizes a private right of action, the APA does not govern plaintiffs’ claims.

The court ordered the parties to supplement the administrative record with relevant material. The court will consider such materials when it rules on the merits of plaintiffs’ claims in coming months.


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