Center for Biological Diversity v. Bernhardt ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff,
v.
No. 20-573 (EGS)
DEBRA HAALAND, in her official
capacity as Secretary of the
United States Department of
the Interior, 1 et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiff, the Center for Biological Diversity (the
“Center”), brings this action against Defendants Debra Haaland,
in her official capacity as Secretary of the United States
Department of the Interior; and Martha Williams, 2 in her
official capacity as Director of the United States Fish and
Wildlife Service (the “FWS” or the “Service”), (collectively
1 Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the current Secretary of the United States Department
of the Interior, Debra Haaland, is substituted as Defendant for
the former Secretary of the United States Department of the
Interior, David Bernhardt. See Fed. R. Civ. P. 25(d).
2 Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the current Director of the United States Fish and
Wildlife Service, Martha Williams, is substituted as Defendant
for the former Director of the United States Fish and Wildlife
Service, Aurelia Skipwith. See Fed. R. Civ. P. 25(d).
1
“Defendants”). See Compl., ECF No. 1. 3 The Center seeks to
compel Defendants to take certain actions under the Endangered
Species Act, 16 U.S.C. §§ 1531–1544 (“ESA” or “Act”): (1) to
make 12-month findings for 231 species, 16 U.S.C. §
1533(b)(3)(B); (2) to publish final listing determinations for
six species, id. § 1533(b)(6)(A); and (3) to make critical
habitat designations for four species, id. § 1533(a)(3)(A)(i),
(b)(6)(A)(ii)(I), (b)(6)(C). See Compl., ECF No. 1 ¶¶ 259-64.
Pending before the Court is Defendants’ Motion for Partial
Dismissal, ECF No. 12. Upon careful consideration of the
parties’ submissions, the applicable law, and the entire record
herein, the Court hereby GRANTS IN PART and DENIES IN PART
Defendants’ Motion for Partial Dismissal.
II. Background
A. Statutory and Regulatory Background
The ESA “represent[s] the most comprehensive legislation
for the preservation of endangered species ever enacted by any
nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180
(1978). Congress passed this legislation “to provide a means
whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, [and] to provide a
3 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
2
program for the conservation of such endangered species and
threatened species.” 16 U.S.C. § 1531(b). “The plain intent of
Congress in enacting this statute was to halt and reverse the
trend toward species extinction, whatever the cost.” Hill, 437
U.S. at 184.
The ESA mandates that the Secretary of the Interior and the
Secretary of Commerce 4 determine whether any species should be
listed as endangered 5 or threatened 6 according to five
enumerated statutory factors. See 16 U.S.C. §§ 1532(15),
1533(a). Listing a species as endangered or threatened triggers
certain legal protections. See, e.g., id. §§ 1533-1538.
Section 4 of the ESA sets forth the procedure by which a
species may be listed as endangered or threatened. See id. §
1533. Any “interested person” may petition the FWS to list a
4 The Act requires that the Secretary of the Interior make
listing determinations for terrestrial species and that the
Secretary of Commerce make listing determinations for most
marine species. See 16 U.S.C. §§ 1532(15), 1533(a)(2). The
Secretaries have delegated their responsibilities to the FWS and
the National Marine Fisheries Service, respectively. See In re
Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1,
3 n.3 (D.D.C. 2011), aff’d sub nom. In re Endangered Species Act
Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972 (D.C. Cir.
2013).
5 The ESA defines “endangered species” as “any species which is
in danger of extinction throughout all or a significant portion
of its range.” 16 U.S.C. § 1532(6).
6 The ESA defines “threatened species” as “any species which is
likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.” 16
U.S.C. § 1532(20).
3
species. Id. § 1533(b)(3)(A). The Act requires that, “[t]o the
maximum extent practicable, within 90 days,” the FWS 7 make an
initial “finding as to whether the petition presents substantial
scientific or commercial information indicating that the
petitioned action may be warranted.” Id. (describing the “90-day
finding”). If the FWS determines that the petition does not
present substantial information indicating that listing may be
warranted, the agency rejects the petition, and the process
concludes. See id. If, however, the FWS determines that the
petition does present substantial information indicating that
listing may be warranted, the agency must publish that finding
in the Federal Register and conduct a scientific review of the
status of the species. Id. (detailing the “status review”).
The ESA further requires that the FWS issue one of the
following determinations “[w]ithin 12 months after receiving a
petition”: (1) listing is “warranted”; (2) listing is “not
warranted”; or (3) listing is “warranted, but . . . precluded”
by other pending proposals for listing species, provided certain
circumstances are present. Id. § 1533(b)(3)(B) (discussing the
“12-month finding”). The agency must publish this determination
in the Federal Register. See id. “The ESA permits no exceptions
to this 12–month mandatory deadline.” In re Endangered Species
7 The Secretary has delegated this and other duties in the ESA
to the FWS. See supra n.3.
4
Act Section 4 Deadline Litig., 277 F.R.D. at 4 (D.D.C. 2011);
Friends of Animals v. Ashe, 808 F.3d 900, 903 (D.C. Cir. 2015)
(“But even if it is not practicable, the Service must make an
initial determination within 12 months of receiving the listing
petition.”). 8
The process concludes here for any species for which the
FWS determines listing is not warranted. See 16 U.S.C. §
1533(b)(3)(B)(i). Alternatively, for species whose listing is
warranted, the FWS must “publish in the Federal Register a
general notice and the complete text of a proposed regulation to
implement such action.” Id. § 1533(b)(3)(B)(ii). Within one year
of publishing that proposed listing rule, the agency must
publish the final listing determination in the Final Register.
Id. § 1533(b)(6)(A).
A species whose listing is warranted but precluded is
considered a candidate for listing under the ESA. See 2022
Candidate Notice of Review (“CNOR”), 87 Fed. Reg. 26,152 (May 3,
2022) (“A candidate species is one for which we have on file
sufficient information on biological vulnerability and threats
to support a proposal for listing as endangered or threatened,
8 The ESA permits the FWS to “extend the one-year period . . .
for not more than six months for purposes of soliciting
additional data” provided that the agency has found “that there
is substantial disagreement regarding the sufficiency or
accuracy of the available data.” 16 U.S.C. § 1533(b)(6)(B)(ii)–
(iii).
5
but for which preparation and publication of a proposal is
precluded by higher priority listing actions.”). The FWS must
“publish [this] finding in the Federal Register, together with a
description and evaluation of the reasons and data on which the
finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii). The agency
must treat this petition as one that has been resubmitted for
consideration. Id. § 1533(b)(3)(C)(i). As a result, the FWS must
make a new determination within 12 months as to whether listing
is warranted or warranted but precluded. See id. The agency must
also “implement a system to monitor effectively the status” of
these candidate species “to prevent a significant risk to the
well being of any such species.” Id. § 1533(b)(3)(C)(iii).
Additionally, the ESA mandates that the agency designate
critical habitats 9 “to the maximum extent prudent and
determinable . . . concurrently with making a determination . .
9 The ESA defines the critical habitat for an endangered or
threatened species as:
(i) the specific areas within the geographical
area occupied by the species, at the time it
is listed . . . , on which are found those
physical or biological features (I) essential
to the conservation of the species and (II)
which may require special management
considerations or protection; and
(ii) specific areas outside the geographical
area occupied by the species at the time it is
listed . . . , upon a determination by the
Secretary that such areas are essential for
the conservation of the species.
16 U.S.C. § 1532(5)(A).
6
. that a species is an endangered species or a threatened
species.” Id. § 1533(a)(3)(A)(i). The agency must make this
designation “on the basis of the best scientific data available
and after taking into consideration the economic impact, the
impact on national security, and any other relevant impact, of
specifying any particular area as critical habitat.” Id. §
1533(b)(2).
As with the listing procedure, the process for designating
critical habit is governed by statutory deadlines. See id. §
1533(a)(3)(A)(i). However, if critical habitat is not
determinable at the time of listing, the Act empowers the agency
to extend its deadline to designate critical habitat by “no more
than one additional year.” Id. § 1533(b)(6)(C)(ii). At that
time, the FWS “must publish a final regulation, based on such
data as may be available at that time, designating, to the
maximum extent prudent, such habitat.” Id.
B. Factual
This case concerns “the ongoing failure” of the FWS to
comply with statutory deadlines for listing species as
threatened or endangered and for designating critical habitats
for these species. Compl., ECF No. 1 ¶ 1. In 2011, following
multi-district litigation, the FWS entered into two settlement
agreements requiring it to complete hundreds of listing
determinations. See id. ¶ 46 (citing Order Granting Joint Mot.
7
for Approval of Settlement Agreement and Order of Dismissal of
Center for Biological Diversity’s Claims, In re Endangered
Species Act Section 4 Deadline Litig., No. 1:10-mc-00377-EGS,
MDL No. 2165 (D.D.C. Sept. 9, 2011), ECF No. 56; Order Granting
Joint Mot. for Approval of Settlement Agreement and Order of
Dismissal of WildEarth Guardians’ Claims, ECF No. 55). As part
of these settlement agreements, the Center agreed to limit its
challenges to the agency’s failures to make timely
determinations to no more than 10 species each year. See
Stipulated Settlement Agreement, In re Endangered Species Act
Section 4 Deadline Litig., Misc. No. 10-377 (D.D.C. July 12,
2011), ECF No. 42-1 ¶ B(10)(c).
In September 2016, the FWS announced its multi-year
National Listing Workplan for completing the more than 200
overdue findings required by law but not captured by the
Settlement Agreement. See Compl., ECF No. 1 ¶ 47. The agency
updated this Workplan in May 2019 to address its planned actions
for the following five-year period. See id. ¶ 49. Despite the
agency’s commitments in these Workplans, the FWS missed
statutory deadlines for 30 species in fiscal year 2017, 78
species in fiscal year 2018, and 46 species in fiscal year 2019.
See id. ¶ 48.
At the time the Center filed the Complaint, the
organization alleged that the FWS had failed to make listing
8
determinations and/or critical habitat designations for 241
species. See id. ¶ 5. Specifically, the Center claims that: (1)
the agency has not completed a 12-month finding for 231 species,
see id. ¶ 50-200, 259-60; (2) the agency has not completed a
final listing determination for six species, see id. ¶¶ 201-40,
261-62; and (3) the agency has not made a proposed or final
critical habitat designation for four species, see id. ¶¶ 241-
58, 263-64.
C. Procedural
The Center filed this lawsuit on February 27, 2020. See
Compl., ECF No. 1. On May 4, 2020, Defendants filed this motion,
which requests dismissal of the Center’s claims with respect to
various species. See Defs.’ Mot. Partial Dismissal, ECF No. 12
at 1; Mem. in Supp. Defs.’ Mot. Partial Dismissal (“Defs.’
Mot.”), ECF No. 12-1 at 1-2. The Center filed its opposition
brief on June 8, 2020, see Pl.’s Opp’n Defs.’ Mot. Partial
Dismissal (“Pl.’s Opp’n”), ECF No. 17; and Defendants filed
their reply brief on June 25, 2020, see Reply Mem. in Supp.
Defs.’ Mot. Partial Dismissal (“Defs.’ Reply”), ECF No. 18.
In August 2021, the Court granted the parties’ request that
the case be stayed so that they could enter into mediation.
Minute Order (Aug. 16, 2021). Mediation resulted in three
stipulated settlement agreements, narrowing the dispute between
9
the parties. See ECF No. 28, ECF No. 37, and ECF No. 38.
Defendants’ ripe motion is now ready for adjudication.
III. Legal Standard
A. Rule 12(b)(1) Motion to Dismiss
“Federal courts lack jurisdiction to decide moot cases
because their constitutional authority extends only to actual
cases or controversies.” Iron Arrow Honor Soc’y v. Heckler, 464
U.S. 67, 70 (1983) (per curiam). “A case becomes moot—and
therefore no longer a ‘Case’ or ‘Controversy’ for purposes of
Article III—when the issues presented are no longer live or the
parties lack a legally cognizable interest in the
outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013) (citation and internal quotation marks omitted). “This
occurs when, among other things, the court can provide no
effective remedy because a party has already obtained all the
relief that [it has] sought.” Conservation Force v. Jewell, 733
F.3d 1200, 1204 (D.D.C. 2013) (citation and internal quotation
marks omitted).
“A motion to dismiss for mootness is properly brought under
Rule 12(b)(1) because mootness itself deprives the court of
jurisdiction.” Indian River Cnty. v. Rogoff, 254 F. Supp. 3d 15,
18 (D.D.C. 2017). “Because Rule 12(b)(1) concerns a court’s
ability to hear a particular claim, the court must scrutinize
the plaintiff’s allegations more closely when considering a
10
motion to dismiss pursuant to Rule 12(b)(1) than it would under
a motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S.
Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citing
Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.
2003)). In so doing, the court must accept as true all of the
factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff, but the court need not
“accept inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations.” Rann v. Chao,
154 F. Supp. 2d 61, 64 (D.D.C. 2001).
B. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and internal quotation marks
omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
11
(citation and internal quotation marks omitted). “In determining
whether a complaint fails to state a claim, [the court] may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which [the court] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997). A claim is facially plausible when the facts pled in the
complaint allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. The standard does not amount to a “probability
requirement,” but it does require more than a “sheer possibility
that a defendant has acted unlawfully.” Id.“[W]hen ruling on a defendant’s motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
D.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(citation and internal quotation marks omitted). In addition,
the court must give the plaintiff the “benefit of all inferences
that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
12
IV. Analysis
A. The Center’s Claim Regarding the Island Marble Butterfly
is Moot
Federal courts possess constitutional authority to exercise
jurisdiction only over “actual, ongoing controversies.” McBryde
v. Comm. to Review Circuit Council Conduct, 264 F.3d 52, 55
(D.C. Cir. 2001) (citation omitted). Accordingly, a court must
determine if there is a live controversy “‘through all stages’
of the litigation.” 21st Century Telesis Joint Venture v.
F.C.C., 318 F.3d 192, 198 (D.C. Cir. 2003) (quoting Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). “Even where
litigation poses a live controversy when filed,” Clarke v.
United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc); the
court may not decide “[i]f events outrun the controversy such
that the court can grant no meaningful relief,” McBryde, 264
F.3d at 55.
Defendants move to dismiss the Center’s claim regarding the
island marble butterfly (Euchloe ausonides insulanus) as moot.
See Defs.’ Mot., ECF No. 12-1 at 20. They explain that, since
the Center filed the Complaint, the FWS has completed a final
listing determination and critical habitat designation for the
species. See id.; see also 85 Fed. Reg. 26,786 (May 5, 2020)
(listing species as endangered and designating its critical
13
habitat). 10 The Center “does not contest dismissal of the
Complaint with respect to th[is] species.” Pl.’s Opp’n, ECF No.
17 at 32.
The Court agrees that the island marble butterfly claim is
moot. The Center sought injunctive and declaratory relief for
Defendants’ failure to make a final listing determination and
critical habitat designation. Compl., ECF No. 1 ¶¶ 213-19, 261-
64; id. at 60-61 (Request for Relief). The agency has now
completed both acts, and the Center has “obtained all the relief
that [it] sought.” Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C.
Cir. 1984); see also People for the Ethical Treatment of
Animals, Inc. v. U.S. Fish & Wildlife Serv., 59 F. Supp. 3d 91,
96 (D.D.C. 2014) (“That mootness of a claim against a specific
agency action also moots claims for declaratory relief over
those specific agency actions is well-attested in D.C. Circuit
precedent.”). There is nothing left for the Court to order. Cf.
Conservation Force, 733 F.3d at 1204 (holding that the agency’s
publication of a 12-month finding “render[ed] moot” the
10In their motion, Defendants explain that “[t]he Federal
Register will publish the final listing determination and
critical habitat designation for the island marble butterfly on
May 5, 2020, and has also made FWS’s finding available for
public inspection today [May 4, 2020].” Defs.’ Mot., ECF No. 12-
1 at 20 n.9. The Court may “take judicial notice of materials
published in the Federal Register.” Banner Health v. Sebelius,
797 F. Supp. 2d 97, 112 (D.D.C. 2011) (citing 44 U.S.C. § 1507(“The contents of the Federal Register shall be judicially
noticed.”)).
14
plaintiff’s challenge to the agency’s failure to publish a 12-
month finding for the same species on an earlier petition).
Because there is no remaining controversy, the Court DISMISSES
the claim regarding the island marble butterfly as moot. See
Conservation Force v. Salazar, 851 F. Supp. 2d 39, 45 (D.D.C.
2012).
B. The Court Does Not Have Jurisdiction Over the Center’s
Claims Regarding Four Other Species
Defendants move to dismiss the Center’s claims with respect
to the following species because their listing petitions have
been withdrawn: Comal Springs salamander (Eurycea sp. 8), desert
massasauga (Sistrurus catenatus edwardsii), Wet Canyon
talussnail (Sonorella macrophallus), and yellow pond-lily
(Nuphar lutea ssp. sagittifolia). See Defs.’ Mot., ECF No. 12-1
at 22-25. The Center “does not contest dismissal of the
Complaint with respect to th[ese] species.” Pl.’s Opp’n, ECF No.
17 at 32.
The Court concludes that it does not have jurisdiction over
these four listing petitions. The ESA’s citizen-suit provision
permits parties to file a civil action “where there is alleged a
failure of the Secretary to perform any act or duty under
section 1533 of this title which is not discretionary with the
Secretary.” 16 U.S.C. 1540(g)(1)(C). As with any other waiver of
sovereign immunity, this provision must “be strictly construed,
15
in terms of its scope, in favor of the sovereign.” Lane v. Pena,
518 U.S. 187, 192 (1996). It follows, then, that the plaintiff
first “must identify a non-discretionary, statutory duty.”
Conservation Force v. Salazar, 753 F. Supp. 2d 29, 35 (D.D.C.
2010), aff’d, 699 F.3d 538 (D.C. Cir. 2012). One applicable duty
is for the FWS to make 12-month findings for the listing
petitions it receives. See 16 U.S.C. § 1533(b)(3)(B); Friends of
Animals v. Jewell, 828 F.3d 989, 991 (D.C. Cir. 2016) (“The
Secretary’s duty to comply with [S]ection 4’s 12-month finding
provision—once triggered by a positive 90-day finding—is non-
discretionary and therefore falls within the citizen-suit
provision.”). There is no such duty without an operative
petition. See Coos Cnty. Bd. of Cnty. Comm’rs v. Kempthorne, 531
F.3d 792, 804 (9th Cir. 2008); cf. Ashe, 808 F.3d at 904(explaining that the FWS “cannot violate the duty to make a
final determination before that duty has come into existence”).
Here, the Secretary has no duty to act because the petitions for
the four species listed above have been withdrawn. See Ltr. from
Ms. Curry to Mr. Miranda, ECF No. 12-2 (withdrawing petition for
yellow pond-lily); Ltr. from Ms. Cotton to Mr. Yang, ECF No. 12-
3 (withdrawing petition for Wet Canyon talussnail); Ltr. from
Ms. Jones to Ms. Lueders, ECF No. 12-4 (withdrawing petitions
16
for Comal Springs salamander and desert massasauga). 11
Consequently, the Center has not satisfied the requirements to
sue under the ESA’s citizen-suit provision.
Nor does the Court possess jurisdiction over this or any
other claim in the Complaint on the basis of the Administrative
Procedure Act (“APA”). In the Complaint, the Center brought its
claims under the ESA’s citizen-suit provision and, in the
alternative, under the APA. See Compl., ECF No. 1 ¶¶ 259-64.
“[T]he APA by its terms independently authorizes review only
when ‘there is no other adequate remedy in a court.’” Bennett v.
Spear, 520 U.S. 154, 161–62 (1997) (quoting 5 U.S.C. § 704). The
ESA’s citizen-suit provision provides such a remedy for the
Center’s claims. Conservation Force v. Salazar, 715 F. Supp. 2d
99, 104 n.6 (D.D.C. 2010) (citing 16 U.S.C. § 1540(g)(1)).
Because the ESA presents an avenue for review of agency action,
relief under the APA is unavailable. See Coos Cnty., 531 F.3d at
810. In other words, despite the styling in the Complaint, the
Center’s claims may be construed only as ESA claims, not as APA
claims.
11On a Rule 12(b)(1) motion, “the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.” Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
17
Accordingly, the Court DISMISSES the Center’s 12-month
finding claims for the Comal Springs salamander, desert
massasauga, Wet Canyon talussnail, and yellow pond-lily.
C. The Center Did Not Comply with the ESA’s Notice
Requirement as to the Panama City Crayfish
The ESA prohibits a potential plaintiff from filing a civil
action “prior to sixty days after written notice has been given
to the Secretary.” 16 U.S.C. § 1540(g)(2)(C). This requirement
“is a mandatory, not optional, condition precedent for suit.”
Ashe, 808 F.3d at 903 (citations and internal quotation marks
omitted). This notice letter “must, at a minimum, ‘provide
sufficient information of a violation so that the Secretary or
[agency] [can] identify and attempt to abate the violation.’”
Rsch. Air, Inc. v. Norton, No. CIV.A. 05-623 (RMC), 2006 WL
508341, at *10 (D.D.C. Mar. 1, 2006) (quoting Sw. Ctr. for
Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d
515, 520 (9th Cir. 1998)).
Defendants move to dismiss the Center’s claim regarding the
Panama City crayfish (Procambarus econfinae) for failure to
comply with this notice requirement. See Defs.’ Mot., ECF No.
12-1 at 25-27. They cite the Center’s notice letter and explain
that the letter discusses “a potential claim for failure to
propose critical habitat” but not a potential claim for failure
to make a final listing determination. Id. at 26 (citing Ltr.
18
from Mr. Greenwald to Sec’y Bernhardt, ECF No. 12-5 at 9). 12 The
Center “does not contest dismissal of the Complaint with respect
to th[is] species.” Pl.’s Opp’n, ECF No. 17 at 32.
The Court agrees with Defendants that the Center has not
complied with the notice requirement for the Panama City
crayfish. The Center’s letter to the Secretary includes only one
violation for the Panama City crayfish for which the
organization “intend[ed] to seek a judicial order to compel the
Service’s action if the Service d[id] not remedy . . . within
the next 60 days”: the agency’s failure to propose critical
habitat. Ltr. from Mr. Greenwald to Sec’y Bernhardt, ECF No. 12-
5 at 3, 9 (citing 16 U.S.C. § 1540(g)(2)(C)). Because this
letter did not notify the Secretary that the Center also
intended to challenge FWS’ failure to complete the 12-month
finding for the species, the letter is ineffective notice as to
the organization’s 12-month finding claim. Conservation Force,
715 F. Supp. 2d at 104 (“[I]t would be unfair to permit this
claim to proceed.”). The Court therefore DISMISSES the claim
regarding the Panama City crayfish.
12The Court may consider this notice letter in ruling on
Defendants’ Motion to Dismiss. See Abhe & Svoboda, Inc. v. Chao,
508 F.3d 1052, 1059 (D.C. Cir. 2007) (“In determining whether a
complaint states a claim, the court may consider the facts
alleged in the complaint, documents attached thereto or
incorporated therein, and matters of which it may take judicial
notice.” (citations and internal quotation marks omitted)).
19
D. The Center’s Claims Regarding 192 Species Are Not Time-
Barred
Finally, Defendants move to dismiss the Center’s claims
regarding the agency’s failure to make 12-month findings for 192
species. See Defs.’ Mot., ECF No. 12-1 at 27. 13 They argue that:
(1) the claims are time-barred; (2) the claims should not be
equitably tolled; and (3) the Center has another adequate
remedy. See id. at 27-43. The Center contests all of Defendants’
arguments. See Pl.’s Opp’n, ECF No. 17 at 16-32. For the reasons
that follow, the Court determines that the Center’s claims are
timely and DENIES Defendants’ motion.
The parties rightly agree that the ESA does not contain any
provision specifying a statute of limitations. See Defs.’ Mot.,
ECF No. 12-1 at 27; see generally Pl.’s Opp’n, ECF No. 17 at 16-
31; 16 U.S.C. §§ 1531–1544. Instead, they dispute whether a
different statute of limitations applies to the Center’s claims:
28 U.S.C. § 2401(a). See 28 U.S.C. § 2401(a). This statute
states that “every civil action commenced against the United
States shall be barred unless the complaint is filed within six
years after the right of action first accrues.” Id. Defendants
argue that Section 2401(a) must apply to the Center’s claims
13Defendants’ motion to dismiss claims as time-barred includes
the four species addressed in Part IV.B. of this Opinion.
Because the Court has already determined that it does not have
jurisdiction over claims regarding those species, it will not
consider those species again here.
20
because it is “presumptively applicable to ‘every civil action
commenced against the United States.’” Defs.’ Reply, ECF No. 18
at 8 (emphasis omitted) (quoting 28 U.S.C. § 2401(a)).
The Center does not deny that “Section 2401 is a general
catchall statute that applies to all civil actions against the
government.” Felter v. Norton, 412 F. Supp. 2d 118, 124 (D.D.C.
2006); see Pl.’s Opp’n, ECF No. 17 at 16-31. Nevertheless, it
argues that this six-year limitations period does not apply to
its claims because the FWS’ “failure to make timely 12-month
findings for hundreds of species constitutes a continuing
violation of the Act.” Pl.’s Opp’n, ECF No. 17 at 28. The
continuing violation doctrine is an exception to the general
rule that “‘[a] claim normally accrues when the factual and
legal prerequisites for filing suit are in place.’” Earle v.
Dist. of Columbia, 707 F.3d 299, 306 (D.C. Cir. 2012) (quoting
Norwest Bank Minn. Nat’l Ass’n v. FDIC, 312 F.3d 447, 451 (D.C.
Cir. 2002)). Although “[t]his doctrine is ‘muddled,’” the D.C.
Circuit recognizes at least two applications: (1) where the
“character [of the challenged conduct] as a violation did not
become clear until it was repeated during the limitations
period, typically because it is only its cumulative impact . . .
that reveals its illegality”; and (2) where “the text of the
pertinent law imposes a continuing obligation to act or refrain
from acting.” Id. at 306-07 (citations omitted).
21
The Center argues that the text of the ESA imposes a
continuing obligation on the FWS to make 12-month findings for
petitioned species. See Pl.’s Opp’n, ECF No. 17 at 17. 14 Whether
the text imposes a continuing obligation on the agency “is a
question of statutory construction.” Earle, 707 F.3d at 307. The
statutory language at issue instructs that the FWS “shall make”
its finding on a listing petition “[w]ithin 12 months after
receiving a petition.” 16 U.S.C. § 1533(b)(3)(B). The Center
interprets this text by looking to the purpose of the Act and
its legislative history—specifically, for the 1978 and 1982
amendments to the Act requiring the FWS to act on petitions by
certain mandatory deadlines. See Pl.’s Opp’n, ECF No. 17 at 17-
18 (citing 16 U.S.C. § 1533(b)(3); H.R. Rep. No. 97-835 at 20–22
(1982) (Conf. Rep.)). The 12-month listing deadline “‘replace[d]
the Secretary’s discretion with mandatory, nondiscretionary
duties’” in order to address the “‘footdragging efforts of a
delinquent agency.’” Id. at 9 (emphasis omitted) (quoting H.R.
Rep. No. 97-835 at 20–22). These deadlines, the Center explains,
are meant to “‘expedite the decisionmaking process and . . .
14The Center does not argue that the “character [of the
challenged conduct] as a violation did not become clear until it
was repeated during the limitations period, typically because it
is only its cumulative impact . . . that reveals its
illegality.” Earle, 707 F.3d at 306-07 (citation omitted). The
Court therefore will not consider this application of the
continuing violation doctrine.
22
ensure prompt action,’” id. (quoting H.R. Rep. No. 97-835 at
19); not “shield [the agency’s] ongoing failure to act from
challenge,” id. at 18.
The D.C. Circuit has not yet decided whether Section 4
imposes a continuing obligation on the FWS to act on listing
petitions, and the parties contest the significance of the
circuit’s related caselaw. The Center cites three D.C. Circuit
cases to support its position that a statute of limitations is
“inapplicable in cases challenging ‘not . . . what the agency
has done but rather . . . what the agency has yet to do.’” Pl.’s
Opp’n, ECF No. 17 at 16-17 (quoting In re United Mine Workers of
Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999)). The Court
considers each case briefly.
In In re United Mine Workers, the D.C. Circuit considered a
petition for a writ of mandamus to compel the Department of
Labor to issue final regulations controlling diesel engine
exhaust in coal mines. See 190 F.3d at 546. The statute at issue
required the Secretary of Labor to issue final regulations, or
to explain why she would not issue final regulations, within
ninety days of the certification of the record of a hearing, see
id. at 550 (citing 30 U.S.C. § 811(a)(4)); and required that
petitions for review of any regulations be filed within sixty
days of promulgation, see id. at 548 (citing 30 U.S.C. §
811(d)). The D.C. Circuit allowed the suit to proceed even
23
though the union sued eight years after the agency missed its
deadline “[b]ecause the [union] does not complain about what the
agency has done but rather about what the agency has yet to do.”
See id. at 549. The court’s analysis thus centered solely on the
fact that the statute required the agency to act and the agency
had not yet acted. See id. at 548-49.
The decision in In re Bluewater Network, 234 F.3d 1305(D.C. Cir. 2000) is similar. There, the petitioners filed for a
writ of mandamus to compel the Coast Guard to issue regulations
pursuant to the Oil Pollution Act nine years after the
statutorily imposed deadline. See 234 F.3d at 1307. Even though
the act imposed a 90-day statute of limitations on challenges to
any regulations, see id. at 1308 (citing 33 U.S.C. § 2717(a));
the court permitted the challenge as timely because “[t]he
statute compels the agency to establish . . . standards” and
“[w]hat is at issue in this case is the absence of any
regulations,” see id. at 1314. As in In re United Mine Workers,
the decision here turned entirely on the agency’s inaction
against a statutory mandate to act. See id.Both of these cases involved fact patterns like the one at
issue here. Each case concerned a statute that requires an
agency to take some action by a particular deadline. See 16 §
1533(b)(3)(B); In re United Mine Workers, 190 F.3d at 550; In re
Bluewater, 234 F.3d at 1307. Each statute is governed by a
24
statute of limitations. See 28 U.S.C. § 2401(a) (ESA); In re
United Mine Workers, 190 F.3d at 548; In re Bluewater, 234 F.3d
at 1308. The agency in each case failed to take the statutorily
required action. See supra; In re United Mine Workers, 190 F.3d
at 546; In re Bluewater, 234 F.3d at 1307. And in each case, the
challenge is to the agency’s failure to act pursuant to its
statutory mandate. See In re United Mine Workers, 190 F.3d at
546; In re Bluewater, 234 F.3d at 1307; Compl., ECF No. 1 ¶¶ 1-
260.
The Center also cites Wilderness Society v. Norton, 434
F.3d 584 (D.C. Cir. 2006). See Pl.’s Opp’n, ECF No. 17 at 19-20.
In this case, the D.C. Circuit observed that it “has repeatedly
refused to hold that actions seeking relief under 5 U.S.C. §
706(1) to ‘compel agency action unlawfully withheld or
unreasonably delayed’ are time-barred if initiated more than six
years after an agency fails to meet a statutory deadline.”
Norton, 434 F.3d at 588 (quoting 5 U.S.C. § 706(1)). Although
this language is an accurate summary of the circuit’s caselaw,
the Court will discount it as dictum because it was not
necessary for resolution of the case. See id. at 589 (noting
that the court “need not reach a final determination on this
[time-bar] issue” because the plaintiff lacked standing).
Defendants raise two points to shield themselves from
application of these cases. First, they argue that the holdings
25
in In re United Mine Workers and In re Bluewater are limited to
unreasonable delay claims in the APA and mandamus contexts. See
Defs.’ Reply, ECF No. 18 at 23-24. The Court disagrees. The
statute of limitations issue did not turn on any
Telecommunications Research & Action Center v. FCC, 750 F.2d 70(D.C. Cir. 1984) (“TRAC”) factor or anything else specific to
the APA or mandamus context. See In re United Mine Workers, 190
F.3d at 549-56; In re Bluewater, 234 F.3d at 1312-16. Indeed,
the court considered the TRAC factors only in relation to its
analysis of the merits of these cases. See In re United Mine
Workers, 190 F.3d at 549-56; In re Bluewater, 234 F.3d at 1312-
16. Second, Defendants claim that these holdings are limited to
rulemaking challenges. See Defs.’ Reply, ECF No. 18 at 24 n.7.
This description is also inaccurate since neither case discusses
the rulemaking context in its analysis of the statute of
limitations issue. See In re United Mine Workers, 190 F.3d at
548-49; In re Bluewater, 234 F.3d at 1307-15.
Despite this authority, Defendants urge the Court to adopt
a different interpretation for the ESA. They explain that the
statute imposes a “one-time obligation” to make a 12-month
finding. Defs.’ Reply, ECF No. 18 at 15 (emphasis omitted).
“[T]his sort of requirement,” they continue, “only imposes ‘a
duty of timeliness’ for the “‘specified action [to] be taken by
a date-certain deadline.’” Defs.’ Mot., ECF No. 12-1 at 36
26
(quoting Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir.
1987)). By this logic, the ESA does not impose a continuing
obligation on the FWS to act, and the agency’s failure to make
12-month findings is merely a “discrete unlawful event.” Defs.’
Mot., ECF No. 12-1 at 36 (quoting Earle, 707 F.3d at 306).
To support this argument, Defendants cite binding D.C.
Circuit authority that “the lingering effect of an unlawful act
is not itself an unlawful act” and “cannot be a continuing wrong
which tolls the statute of limitations.” AKM LLC dba Volks
Constructors v. Sec’y of Lab., 675 F.3d 752, 757 (D.C. Cir.
2012) (internal quotation marks omitted) (quoting Earle, 707
F.3d at 306). But this is not relevant to determining the
Center’s continuing violation claim. Compare Pl.’s Opp’n, ECF
No. 17 at 17 (arguing only for the second application of the
continuing violation exception), and Earle, 707 F.3d at 306(discussing the passage quoted in AKM in the context of the
first application of the continuing violation exception).
Defendants also cite a pair of cases from the Fifth and
Eleventh Circuits discussing the continuing violation doctrine
in the context of ESA claims. In both cases, the petitioners
challenged the agency’s failure to make critical habitat
designations. See Gen. Land Off. v. U.S. Dep’t of the Interior,
947 F.3d 309, 318-19 (5th Cir. 2020); Ctr. For Biological
Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006).
27
While these cases are on point, the Court will not adopt their
reasoning. Both the Fifth and Eleventh Circuits concluded that
Section 4 does not impose a continuing obligation on the FWS in
part because Section 2401(a) “is a jurisdictional condition
attached to the government’s waiver of sovereign immunity, and
as such must be strictly construed.” Hamilton, 453 F.3d at 1334,
1335; see Gen. Land Off., 947 F.3d at 318. The D.C. Circuit has
since clarified that Section 2401(a) is not a jurisdictional bar
and therefore should be construed like other limitations
periods. Jackson v. Modly, 949 F.3d 763, 776 (D.C. Cir. 2020),
cert. denied sub nom. Jackson v. Braithwaite, 141 S. Ct. 875
(2020). This change in law calls into question the overall
conclusions in Hamilton and General Land Office. It also
provides further support for the Court to consider the statute
of limitations applicable to the ESA in the same vein as other
limitations periods for other statutes, as in In re United Mine
Workers and In re Bluewater.
Accordingly, the Court concludes that the ESA imposes a
continuing duty on the FWS to make 12-month findings for
petitioned species. Because the FWS is under a continuing
obligation to act and has not yet acted, the Center’s claims
have not accrued. The Court therefore DENIES Defendants’ Motion
28
to Dismiss the Center’s 12-month finding claims as time-
barred. 15
V. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and
DENIES IN PART Defendants’ Motion for Partial Dismissal. See ECF
No. 12. The Center’s claims regarding the 192 species awaiting a
12-month finding may proceed.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 8, 2023
15The Court need not reach the parties’ arguments as to whether
the statute of limitations should be equitably tolled.
29