Salmon Spawning & Recovery Alliance v. Basham

477 F.Supp.2d 1301

SALMON SPAWNING & RECOVERY ALLIANCE, et al., Plaintiffs, v. W. Ralph BASHAM, et al., Defendants.

Slip Op. 07-31.

Court No. 06-00191.

United States Court of International Trade.

March 6, 2007.

Heller Ehrmann LLP, (Eric Redman) and (Svend Arnold Brandt-Erichsen), Settle,

WA, for Plaintiffs Salmon Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers.

Peter D. Keisler, Assistant Attorney General; (Jeanne E. Davidson), Director; (Stephen C. Tosini), Commercial Litigation Branch, Civil Division, United States Department of Justice for Defendants United States Customs & Border Protection, Dirk Kempthorne, United States Department of Interior, United States Fish & Wildlife Service, Carlos M. Gutierrez, United States Department of Commerce, D. Robert Lohn, National Oceanic & Atmospheric Administration National Marine Fisheries Service Deborah J. Spero, and H. Dale Hall.

OPINION

BARZILAY, Judge.

Plaintiffs Salmon Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively "Plaintiffs") have moved for judgment on the agency record, pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 (2000), et seq., the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 551-706 (2000), and USCIT Rule 56.1, to challenge Defendants¹ failure to perform ESA-mandated duties in connection with the importation of threatened and endangered² salmon from Canada into the United States. Specifically, Plaintiff's aver 1) that Defendants have violated section 9 of the ESA (" § 9"), 16 U.S.C. § 1538, and the APA by allowing the prohibited importation of these salmon and 2) that Customs and the FWS have unlawfully failed to consult with the NMFS, as required by section 7 of the ESA ("§ 7"), Id. § 1536, to discern whether their non-enforcement of § 9 jeopardizes the endangered salmon. See Compl. ¶¶ 41-46, 48-51. Plaintiffs ask this court 1) to declare that these actions violate the ESA and APA, 2) to enter injunctive relief to enforce Defendants' compliance with the law, and 3) to award Plaintiff's costs for this action. See Compl. 12. Defendants have moved to dismiss the case for lack of subject matter jurisdiction pursuant to USCIT Rule 12(b)(1) or, in the alternative, for failure to state a claim for which relief can be granted pursuant to USCIT Rule 12(b)(5). For the reasons set forth below, Defendants' motion to dismiss for lack of subject matter jurisdiction is granted.

I. Background

A. The Endangered Species Act

In 1973, Congress passed the Endangered Species Act and established a legal regime designed "to halt and reverse the trend toward species extinction." Earth Island Inst. v. Christopher, 19 CIT 1461, 1480, 913 F.Supp. 559, 576 (1995) (quoting TVA v. Hill, 437 U.S. 153, 184-85, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). From the bill's drafting onward, "[t]he dominant theme pervading all Congressional discussion of the [ESA] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources." TVA, 437 U.S. at 177, 98 S.Ct. 2279 (quotations & citation omitted). It became the "declared ... policy of. Congress that all Federal departments and agencies shall seek to conserve³ endangered species and threatened species and shall utilize their authorities in furtherance of this purpose. 16 U.S.C. § 1531(c).

Under section 4 of the. Act, the Secretary of Commerce or the Interior, whoever is appropriate,⁴ must, promulgate regulations that list species considered "threatened" or "endangered" and that designate these species'"critical habitat." Id. § 1533(a). The Secretary must also "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." § 1533(d). In conjunction with these efforts, § 7 requires every federal agency, "in consultation with and with the assistance of the Secretary," to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical." § 1536(a)(2); accord § 1536(a)(1); 50 C.F.R. § 402.14(a). This provision in effect "`prohibit[s] [a] federal agency from taking action which does jeopardize the status of endangered species.'" TVA, 437 U.S. at 179, 98 S.Ct. 2279 (quoting Endangered Species Act of 1973: Hearing on S. 1592 and S.1983 Before the Subcomm. on Env't of the Comm. on Commerce, 93d Cong. 68 (1973)) (second brackets in original).

In addition, the ESA employs other mechanisms to protect endangered species. For example, § 9 renders it "unlawful for any person subject to the jurisdiction of the United States to — (A) import any [endangered] species into ... the United States," § 1538(a)(1), and section 11 of the ESA contains the citizen suit provision under which Plaintiffs have brought their case, see id. § 1540(g).⁵

B. Salmon Under the ESA

In response to more than a century of over-fishing and environmental abuse, the NMFS has listed twenty-six populations of West Coast salmon and steelhead as threatened or endangered⁶ 50 C.F.R. §§ 223.102 (listing threatened salmon species), 224.101 (listing endangered salmon species); see also id. § 223.203(a) ("The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. [§ 1538(a)(1)) relating to endangered species apply to anadromous fish with an intact adipose fin that are part of the threatened species of salmonids listed in [50 C.F.R.] § 223.102(a)."); Endangered and Threatened Species; Final Rule Governing Take of 1.4 Threatened Salmon and Steelhead Evolutionarily Significant Units (ESUs), 65 Fed.Reg. 42,422, 42,423 (Dep't Commerce July 10, 2000) (finding by NMFS that it is "necessary and advisable" to ban imports of threatened salmon); Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon, 56 Fed.Reg. 58,612 (Dep't Commerce Nov. 20, 1991). Because of the dire circumstances facing many species, the NMFS has extended ESA protection even to certain hatchery-raised salmon to help the populations survive. See § 223.203(a); Policy on the Consideration of Hatchery-Origin Fish in Endangered Species Act Listing Determinations for Pacific Salmon and Steelhead, 70 Fed. Reg. 37,204-01 (Dep't Commerce June 28, 2005). Customs has likewise adopted regulations that comply with the NMFS' findings. 19 C.F.R. § 12.26(g)(1).⁷

Some salmon species listed as endangered swim north from the United States into Canadian waters, where often many are killed for sport or commercial purposes before they can return to U.S. rivers to spawn, i.e., before they can reproduce for the only time in their lives. Commercial shippers⁸ and American sport fishermen often import these dead salmon into the United States. In fact, in Canada an entire industry markets to U.S. sport fishermen the opportunity to hunt these protected salmon. See Pls.' Mot. J. A.R. Ex. 1, 2-3 ("Pls.Mot.").

C. The Case at Bar

In response to Defendants' failure to enforce the importation prohibition on these endangered salmon, pursuant to the ESA's citizen suit provision, Plaintiffs compiled documents detailing the killing of the endangered salmon in Canadian waters and their subsequent importation, and submitted them to Defendants. See Pls. Mot. Ex. 1. Defendants responded with a one-page letter, which stated that Customs would forward the documents to the NMFS. See Pls. Mot. Ex. 2. Plaintiffs then filed suit in the Western District of Washington pursuant to § 1540(g)(1). That court held that it lacked subject matter jurisdiction over the case and transferred the complaint to the Court of International Trade. See Salmon Spawning & Recovery Alliance v. Spero, No. C05-1878Z, 2006 WL 1207909 (W.D.Wash. May 3, 2006); see also 28 U.S.C. § 1631 (2000) (providing for transfer for want of jurisdiction).

II. Defendants' Motion to Dismiss

Subject matter jurisdiction constitutes a "threshold matter" in all cases, such that without it, a case must be dismissed without proceeding to the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "The burden of establishing jurisdiction lies with the party seeking to invoke th[e] Court's jurisdiction." Bhullar v. United States, 27 CIT 532, 535, 259 F.Supp.2d 1332, 1334 (2003) (citing Old Republic Ins, Co. v. United States, 14 CIT 377, 379, 741 F.Supp. 1570, 1573 (1990) (citing McNutt v. GM Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936))), aff'd, 93 Fed. Appx. 218 (Fed.Cir.2004).

A. Standard of Review

An analysis of whether a Court has subject matter jurisdiction "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Bennett v. Spear, 520 U.S. 154, 161, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotations & citation omitted). In its constitutional aspect, a plaintiff must satisfy the "case' or `controversy' requirement of Article III," which requires that the "plaintiff ... demonstrate [1] that he has suffered [an] `injury in fact' [2] ... `fairly traceable' to the actions of the defendant, and [3] that the injury will likely be redressed by a favorable decision."<sup>9</sup> Id. (citations omitted). When examining these factors, "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Earth Island Inst., 19 CIT at' 1465, 913 F.Supp. at 564 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "[T]he material allegations of a complaint are taken as admitted and are to be liberally construed in favor of the...