Salmon Spawning v. U.S. Customs and Border Prot.

550 F.3d 1121

SALMON SPAWNING & RECOVERY ALLIANCE, Native Fish Society and Clark-Skamania Flyfishers, Plaintiffs-Appellants, v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Dirk Kempthorne, Secretary of the Interior, United States Department of the Interior, United States Fish and Wildlife Service, Carlos Gutierrez, Secretary of Commerce, United States Department Of Commerce, D. Robert Lohn, in his official capacity, Deborah J. Spero, in her official capacity, H. Dale Hall, in his official capacity, W. Ralph Basham, in his official capacity, and National Oceanic and Atmospheric Administration National Marine Fisheries Service, Defendants-Appellees.

No. 2007-1444.

United States Court of Appeals, Federal Circuit.

December 18, 2008.

Svend A. Brandt-Erichsen, Heller Ehrman LLP, of Seattle, WA, argued for plaintiffs-appellants. With him on the brief was Michael R. Thorp.

Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief was Michael Bancroft, Attorney Advisor, Office of General Counsel, National Oceanic and Atmospheric Administration, of Seattle, WA.

Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and YOUNG, District Judge^*.

ON PETITION FOR REHEARING

GAJARSA, Circuit Judge.

This case concerns the Endangered Species Act ("ESA") and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively "Salmon Spawning" or "plaintiffs") appeal a final judgment of the Court of International Trade dismissing their complaint against various federal agencies and officials (the "defendants") for lack of subject matter jurisdiction. Salmon Spawning & Recovery Alliance v. Basham, 477 F.Supp.2d 1301 (Ct. Int'l Trade 2007) (Salmon Spawning II). The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA. On July 15, 2008, we issued a decision in which we concluded that the Court of International Trade erred in dismissing the case for lack of standing and remanded to the court to determine in the first instance whether plaintiffs' claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade. Salmon Spawning & Recovery Alliance v. United States Custom and Border Protection, 532 F.3d 1338 (Fed.Cir.2008).

On August 29, 2008, defendants filed a petition for rehearing for the limited purpose of reconsidering statements made in this court's original opinion regarding whether the Court of International Trade may exercise "supplemental" jurisdiction pursuant to 28 U.S.C. § 1367(a). In response Salmon Spawning elected to take no position on the issue presented by the petition. All parties agreed that the relief requested by the petition would not alter the outcome of the appeal; we granted the petition solely so that this court may issue a revised opinion; and we withdrew the previous opinion at 532 F.3d 1338. Our revised opinion follows.

I.

A. The Endangered Species Act

The Supreme Court explained in Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ("TVA"), that in passing the ESA Congress intended "to halt and reverse the trend toward species extinction." In keeping with this mandate, section 9(a)(1)(A) of the ESA makes it unlawful for any person (including a federal agency) to import an endangered or threatened species into the United States. 16 U.S.C. § 1538(a)(1)(A). The ESA provides that its provisions shall be enforced by the Secretary of the Interior (who has designated enforcement responsibility to the U.S. Fish & Wildlife Service); the Secretary of Commerce (who has designated enforcement responsibility to National Marine Fisheries Service); the Secretary of the Treasury (who has designated enforcement responsibility to U.S. Customs and Border Protection); and the Coast Guard. See 16 U.S.C. § 1540(e)(3) ("Any person authorized by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating, to enforce this chapter may detain for inspection and inspect any package, crate, or other container ... upon importation or exportation. ... Such person so authorized may search and seize, with or without a warrant, as authorized by law.").

In addition, the ESA provides additional constraints on all federal agencies. Section 7(a)(2) mandates:

Each Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species.

16 U.S.C. § 1536(a)(2). Section 7(a)(2) "imposes a substantive (and not just procedural) statutory requirement." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___, 127 S.Ct. 2518, 2535, 168 L.Ed.2d 467 (2007). As the Supreme Court explained in TVA, "Section 7 ... compels agencies not only to consider the effect of their projects on endangered species, but to take such actions as are necessary to insure that species are not extirpated as the result of federal activities." TVA, 437 U.S. at 188, 98 S.Ct. 2279 (emphasis in original).¹

B. Salmon and Steelhead Importation

Included in the species that have been designated endangered or threatened are twenty-six populations of West Coast salmon and steelhead (the "ESA-listed salmon"). 50 C.F.R. § 223.1102(c). Customs and Fish & Wildlife officials are stationed at the ports of entry into the United States and are tasked with enforcing the importation ban on the ESA-listed salmon. See 19 C.F.R. § 12.26(g)(1) ("All import shipments of fish and wildlife subject to the regulations or permit requirements of the U.S. Fish and Wildlife Service, published pursuant to the Endangered Species Act of 1973, 16 U.S.C. § 1531 ..., shall be subject to examination or inspection by that agency's officer serving the port of entry, for determination as to permissible release or such other disposition as he may direct.").

Despite these regulations, the complaint, which at this stage in the proceedings we must accept as true, alleges that "[n]either the U.S. Customs and Border Protection, the U.S. Fish & Wildlife Service, nor [Marine Fisheries] enforce the ESA prohibition against the import into the United States of ESA-listed salmon caught in Canada." Compl. ¶ 35; see also Appellants Br. 7 ("Whether by conscious policy or neglect, neither Customs nor Fish & Wildlife make any effort to implement the prohibition on imports of threatened salmon."). In addition, neither Customs nor Fish & Wildlife has consulted with Marine Fisheries, pursuant to section 7 of the ESA regarding their lack of enforcement of the prohibition against importing ESA-listed salmon from Canada into the United States. Compl. ¶ 36.

C. Procedural History

Plaintiffs are non-profit organizations dedicated to the protection of wild fishes included the ESA-listed salmon. They initially brought suit in the District Court of the Western District of Washington, under the citizen suit provisions of the ESA and the Administrative Procedure Act ("APA"). Salmon Spawning & Recovery Alliance v. Spero, No. C05-1878Z, 2006 U.S. Dist. LEXIS 28432, 2006 WL 1207909 (W.D.Wash. May 3, 2006) (Salmon Spawning I) Their two-count complaint alleged: (1) "By allowing continued import of ESA-listed salmon and steelhead in violation of § 9 of ESA, the Defendants are jeopardizing the continued existence of the listed salmon and steelhead in violation of § 7(a)(2)," Compl. ¶ 45 (the "section 9 claim"); and (2) that "it is arbitrary and capricious and not in accordance with law, in violation of the Administrative Procedure Act ... and a violation of section 7 of the ESA, for the U.S. Customs and Border Protection and U.S. Fish & Wildlife Service to continue to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA," Compl. ¶ 51 (the "section 7 claim").

The defendants moved to dismiss the complaint for lack of subject matter jurisdiction. Salmon Spawning I, at *7. They argued that the Court of International Trade had exclusive jurisdiction over the section 9 claim under 28 U.S.C. § 1581(i)(3) because the claim arises out of a law providing for embargoes or other quantitative restrictions on the importation of merchandise, and that accordingly, the Court of International Trade could exercise supplemental jurisdiction over the section 7 claim.² The district court agreed and transferred the case to the Court of International Trade "so that the [Court of International Trade] may determine its own jurisdiction," including whether to exercise supplemental jurisdiction over the section 7 claim. Id. at *27-29.

The Court of International Trade did not reach the issue of whether it was the proper forum to adjudicate Salmon Spawning's claims. Rather, it dismissed the case for lack of subject matter jurisdiction on the grounds that no federal court had jurisdiction over the claims. The court found that it was without jurisdiction over the plaintiffs' section 9 claim because the exercise of the agency's enforcement powers "lie solely within the agency's discretion."³ Salmon Spawning II, 477 F.Supp.2d at 1308 (citing Heckler v. Chaney, 470 U.S. 821,...