Friends of Animals v. Dan Ashe , 808 F.3d 900 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2015 Decided December 22, 2015
No. 14-5172
FRIENDS OF ANIMALS,
APPELLANT
v.
DAN ASHE, IN HIS OFFICIAL CAPACITY AS DIRECTOR U.S. FISH
& WILDLIFE SERVICE AND SALLY JEWELL, IN HER OFFICIAL
CAPACITY AS SEC. OF THE INTERIOR,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01607)
Michael Ray Harris argued the cause for appellant.
With him on the briefs was Jennifer E. Barnes.
Thekla Hansen-Young, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were John C. Cruden, Assistant Attorney General, and
Andrew C. Mergen and Matthew Littleton, Attorneys.
Before: HENDERSON, KAVANAUGH, and PILLARD,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: This case arises under the
Endangered Species Act. In 2012, Friends of Animals
petitioned the U.S. Fish and Wildlife Service to list certain
species of sturgeon as endangered or threatened. Upon the
filing of a listing petition, the Service must make an initial
determination on the petition within 90 days, to the maximum
extent practicable. And then, if that initial determination is
positive, the Service must make a final determination
regarding the petition within 12 months from the date of the
petition filing. The 12-month deadline has no exceptions and,
importantly, is measured from the date of the petition filing,
not from the date of the Service’s initial determination.
In this case, the Service went more than 12 months
without making any determinations – initial or final – on
Friends of Animals’ petition. Understandably frustrated with
the Service’s inaction, Friends of Animals took the matter to
court. But the Endangered Species Act requires a plaintiff to
give 60 days’ notice to the Service before filing suit. The
District Court held that Friends of Animals did not give the
Service adequate notice before suing. The District Court
therefore dismissed the complaint. We affirm.
I
A
In 1973, Congress passed and President Nixon signed the
Endangered Species Act, 16 U.S.C. § 1531 et seq. The Act
promotes the conservation of endangered and threatened
species. Id. § 1531(b). Species officially listed as endangered
or threatened receive certain statutory protections. See, e.g.,
id. §§ 1536, 1538.
3
The Act assigns the Secretary of the Interior to make
listing decisions. Id. § 1533(a). The Secretary of the Interior
in turn has delegated a portion of the listing responsibility to
the U.S. Fish and Wildlife Service. 50 C.F.R. § 402.01(b).
The Service must list a species as endangered or threatened if
it determines, “on the basis of the best scientific and
commercial data available,” that the species is imperiled by
certain factors such as disease or habitat destruction. See 16
U.S.C. § 1533(b)(1)(A); id. § 1533(a)(1).
In addition, the Act requires the Service to evaluate
listing petitions submitted by any “interested person.” Id.
§ 1533(b)(3)(A). Upon the receipt of such a petition, the Act
imposes two sequential duties on the Service, the first
mandatory and the second conditional. First, “[t]o the
maximum extent practicable, within 90 days after receiving
the petition of an interested person . . . the Secretary shall
make a finding as to whether the petition presents substantial
scientific or commercial information indicating that the
petitioned action may be warranted.” Id. That initial
determination may be positive or negative. A negative initial
determination must be published and is subject to judicial
review, but generates no additional duties on the part of the
Service. See id. § 1533(b)(3)(A); id. § 1533(b)(3)(C)(ii).
A positive initial determination, however, triggers the
Service’s second duty, the final determination: “Within 12
months after receiving a petition that is found under
subparagraph (A) to present substantial information indicating
that the petitioned action may be warranted, the Secretary
shall make one of the following findings . . . .” Id.
§ 1533(b)(3)(B). The Service’s final determination may
conclude that the listing petition is warranted, not warranted,
or warranted but precluded by pending proposals to list other
species. Id. § 1533(b)(3)(B)(i)-(iii).
4
The 12-month deadline for a final determination is a hard
deadline calculated from the date of the petition filing, not
from the date that the Service issues a positive initial
determination. That is true even though the Service’s duty to
produce a final determination is predicated on a positive
initial determination. The 90-day deadline for the initial
determination is not so rigid. Instead, the Act grants the
Service some flexibility over when to issue initial
determinations. See id. § 1533(b)(3)(A) (initial
determinations must be issued within 90 days “[t]o the
maximum extent practicable”). But that flexibility is not
unlimited. Rather, the inflexible 12-month deadline for the
final determination necessarily also places an outer limit on
the Service’s time for issuing the initial determination. See
Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166,
1175-76 (9th Cir. 2002).
Reading the provisions in harmony yields the following
scheme: The Service must “to the maximum extent
practicable” make an initial determination within 90 days of
receiving a listing petition. But even if it is not practicable,
the Service must make an initial determination within 12
months of receiving the listing petition. The issuance of a
positive initial determination triggers the Service’s duty to
make a final determination. And the Service has 12 months
from the date of the petition filing – not from the date of the
initial determination – to issue the final determination.
Under the Endangered Species Act, citizens may sue to
compel the Service to make determinations within the Act’s
timeframes. Under the Act’s citizen-suit provision, “any
person may commence a civil suit on his own behalf . . .
against the Secretary 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
5
U.S.C. § 1540(g)(1)(C). The Service’s duties to make initial
and final determinations – once triggered – are
nondiscretionary and are therefore enforceable under the
citizen-suit provision.
There is, however, one condition to filing suit. The
plaintiff must give notice to the Service 60 days before
bringing suit: “No action may be commenced under
subparagraph (1)(C) of this section prior to sixty days after
written notice has been given to the Secretary . . . .” Id.§ 1540(g)(2)(C). Notice “is a mandatory, not optional,
condition precedent for suit.” Hallstrom v. Tillamook County,
493 U.S. 20, 26 (1989) (interpreting similar notice provision
in the Resource Conservation and Recovery Act); Southwest
Center for Biological Diversity v. Bureau of Reclamation, 143
F.3d 515, 520 (9th Cir. 1998) (Hallstrom’s rationale applies to
the Endangered Species Act’s notice provision).
B
Friends of Animals is a non-profit organization that seeks
to protect animals from cruelty and exploitation. In March
2012, the organization petitioned the Service to list 10 species
of sturgeon as endangered or threatened. For more than a
year, the Service issued no determinations – initial or final –
for any of those species. So on August 16, 2013, Friends of
Animals sent the Service written notice that the Service had
failed to make initial and final determinations for the 10
species of sturgeon, as well as for 29 species submitted by a
different organization between 2010 and 2011. As of the date
of the notice letter, the Service had not issued initial or final
determinations for any of the 39 species.
Friends of Animals filed suit against the Service on
October 21, 2013, more than 60 days after providing notice.
Because the Service had already started to issue initial
6
determinations during the 60-day waiting period, the
complaint demanded only that the Service make final
determinations for the 39 species.1
The Service moved to dismiss the complaint. It argued
that Friends of Animals lacked standing and had failed to give
proper notice of its suit. The District Court declined to
address standing but agreed that the notice was defective
because, without positive initial determinations, the Service’s
obligations to make final determinations had not been
triggered at the time that Friends of Animals provided notice
to the Service. Friends of Animals v. Ashe, 51 F. Supp. 3d 77,
85-88 (D.D.C. 2014). The District Court therefore dismissed
the complaint. Friends of Animals promptly appealed. We
review de novo the District Court’s grant of a motion to
dismiss. Carter v. Washington Metropolitan Area Transit
Authority, 503 F.3d 143, 145 (D.C. Cir. 2007).
II
The notice requirement of the Endangered Species Act
serves the important purpose of giving the Service “an
opportunity to bring itself into complete compliance with the
Act and thus likewise render unnecessary a citizen suit.”
Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1989)
(internal quotation marks omitted). The question here –
whether Friends of Animals complied with the notice
requirement of the Act – boils down to a very narrow and
extraordinarily technical question regarding the timing of
notice. Specifically, under the Act, what must a party do to
bring suit when the Service sits on a listing petition for more
than a year without making either an initial or final
1
Starting in September 2013 and continuing through January
2014, the Service gradually issued positive initial determinations
for all 39 species.
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determination? Friends of Animals urges that, 12 months
after filing a listing petition, it may provide a single notice of
the Service’s failure to make the initial and final
determinations. Then, after 60 days, it can bring one
consolidated suit to compel both determinations. The Service
prefers a stepwise approach: Friends of Animals must first
provide notice to the Service about the Service’s failure to
make an initial determination; then, after 60 days have passed,
Friends of Animals may sue to compel the initial
determination. If and when the Service issues a positive
initial determination, Friends of Animals must provide a new
notice to the Service; then, after another 60 days have passed,
Friends of Animals may sue again to compel the final
determination.
The Service’s approach may not be the most efficient.
But we agree with the District Court that the statute compels
it.
In setting out the Service’s duty to make final
determinations, the Act states: “Within 12 months after
receiving a petition that is found under subparagraph (A) to
present substantial information indicating that the petitioned
action may be warranted, the Secretary shall make one of the
following findings . . . .” 16 U.S.C. § 1533(b)(3)(B). The
text makes clear that the Service does not violate its duty to
make a final determination unless there has been (i) a positive
initial determination and (ii) a lapse of 12 months from the
date of the petition filing. Put another way, the Act obligates
the Service to make a final determination only if it has
previously issued a positive initial determination for the same
listing petition.
To state the obvious, the Service cannot violate the duty to
make a final determination before that duty has come into
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existence. As a result, giving the Service notice of an
allegedly overdue final determination before the Service has
issued a positive initial determination does not give notice of
an existing violation of a nondiscretionary duty. Rather, it
provides notice only of a possible future violation of a duty
that may never arise. Such pre-violation notice conflicts with
the text of § 1540(g). Section 1540(g)(2)(C)’s notice
requirement applies only to suits alleging “a failure of the
Secretary to perform any act or duty under section 1533 of
this title which is not discretionary with the Secretary.” Id.
§ 1540(g)(1)(C). Therefore, notice to the Secretary under
§ 1540(g)(2)(C) must be of an alleged failure to perform some
nondiscretionary act or duty that exists at the time of the
notice.
In this case, Friends of Animals provided 60 days’ notice
of allegedly overdue final determinations before the Service
had issued any positive initial determinations. Because
Friends of Animals did not wait until after the issuance of the
positive initial determinations to provide 60 days’ notice of
the allegedly overdue final determinations, its suit seeking to
compel the final determinations is barred.2
To be clear, the deadlines set forth in § 1533(b) are
mandatory. If 12 months have passed from the date of the
petition filing and the Service has not made an initial
determination, a court ordinarily may order the Service to
make an initial determination if requested to do so by a party
2
Because we conclude that Friends of Animals failed to
comply with the Act’s notice requirement, we need not address the
Service’s argument that Friends of Animals lacks standing. See
Sinochem International Co. Ltd. v. Malaysia International Shipping
Corp., 549 U.S. 422, 430-35 (2007); Public Citizen v. U.S. District
Court for the District of Columbia, 486 F.3d 1342, 1345-49 (D.C.
Cir. 2007).
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with standing, assuming the party has given 60 days’ notice to
the Service.3 If 12 months have passed from the date of the
petition filing and the Service has made a positive initial
determination but not a final determination, a court ordinarily
may order the Service to make a final determination,
assuming the party has given 60 days’ notice to the Service
after the positive initial determination was made.
***
We affirm the judgment of the District Court.
So ordered.
3
A private party of course can sue to try to compel an initial
determination even before the expiration of the 12-month period
from the date of the petition filing. But to do that, the party must
show that the Service failed to make the initial determination “[t]o
the maximum extent practicable, within 90 days after receiving the
petition.” 16 U.S.C. § 1533(b)(3)(A).