Opinion
No. CV F 02-5376 AWI DLB
October 10, 2002
MEMORANDUM OPINION AND ORDER RE MOTION TO DISMISS
This is a civil action for declaratory and injunctive relief in which Plaintiffs challenge the adoption by the United States Fish and Wildlife Service ("the Service") of the final rule listing the Buena Vista Lake shrew as an endangered subspecies pursuant to section 4(b) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1533(b). Subject matter jurisdiction is at issue. Venue is proper in this district.
PROCEDURAL HISTORY
Plaintiffs filed their complaint on April 9, 2002, to which Defendants Anne Badgley, Regional Director of the United States Fish and Wildlife Service, Region 1; Steven A. Williams, Director of the United States Fish and Wildlife Service; Gale A. Norton, Secretary of the Interior; the United States Department of the Interior; and the United States Fish and Wildlife Service ("Federal Defendants") filed an answer on June 7, 2002. On June 10, 2002, Plaintiffs filed a first amended complaint. On July 19, 2002, the parties filed a stipulation that the first amended complaint would be deemed to have been filed on that date.
On June 17, 2002, the Center for Biological Diversity, Inc., filed a motion to intervene in this action as a defendant pursuant to Rule 24(b), Federal Rules of Civil Procedure. On July 19, 2002, Plaintiffs filed their first amended complaint adding a Plaintiff but not amending any of their claims. On July 26, 2002, Federal Defendants filed an answer to the first amended complaint. On August 12, 2002, Center for Biological Diversity filed an answer to the first amended complaint. Federal Defendants filed the administrative record in this case on August 14, 2002.
On August 22, 2002, Center for Biological Diversity filed a motion to dismiss Claim 12 of Plaintiffs' first amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, and for failure to state a claim pursuant to Rule 12(b)(6). Also on August 22, 2002, Federal Defendants filed a motion to dismiss claims 1, 2, 5, 6, 8 and 9 of Plaintiff's first amended complaint for lack of subject matter jurisdiction. These are the motions now pending before the court. On August 23, 2002, the court granted the motion of Center for Biological Diversity to intervene, and on September 11, 2002, it filed a first amended answer to the Plaintiff's first amended complaint.
LEGAL STANDARD
Rule 12(b), Federal Rules of Civil Procedure, provides as follows:
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in 25 the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the 26 subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Rule 12(h) provides as follows:
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
ALLEGED FACTS
On June 1, 2000, the Service published a Proposed Rule to list the Buena Vista Lake shrew as an endangered subspecies. 65 Fed. Reg. 35033. On January 25, 2002, Plaintiffs submitted to the Service a 60 day Notice of Intent to File Suit for violations of the ESA, the Administrative Procedures Act ("APA"), the National Environmental Policy Act ("NEPA"), the Regulatory Flexibility Act ("RFA"), and the Small Business Regulatory Enforcement Fairness Act ("SBREFA"). On March 6, 2002, the Service published the Final Rule listing the Buena Visa Lake shrew as an endangered species. 67 Fed. Reg. 10101. On April 9, 2002, Plaintiffs filed their complaint in the present action presenting twelve claims for relief, six of which allege that the final rule violates the ESA.DISCUSSION
Federal Defendants are reminded of their duties under Local Rule 7-131, which provides that, "[t]he name, address, telephone number, and the California State Bar membership number of all counsel . . . and the specific identification of each party represented by name and interest in the litigation . . . shall appear in the upper left-hand corner of the first page of each document presented for filing."
In their complaint, Plaintiffs state, "In this action, Plaintiffs challenge the adoption by the Service of the final rule listing the Buena Vista Lake shrew ( Sorex ornatus relictus) ("Buena Vista Lake shrew") — a small, mouse-like animal — as an endangered subspecies ( 67 Fed. Reg. 10101 (Mar. 6, 2002))("Final Rule"), pursuant to section 4(b) of the ESA, 16 U.S.C. § 1533(b)." Federal Defendants seek dismissal of Plaintiffs' claims numbers 1, 2, 5, 6, 8, and 9 for lack of subject matter jurisdiction on the ground that Plaintiffs failed to comply with the 60 day notice requirement prior to filing a claim against them under the citizen suit provision of ESA, 16 U.S.C. § § 1531-44. Specifically, Federal Defendants contend that Plaintiffs failed to comply with 16 U.S.C. § 1540(g)(2)(C). Subsection (g) provides as follows:
(g) Citizen suits
(1) Except as provided in paragraph
(2) of this subsection any person may commence a civil suit on his own behalf —
(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof or
(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or
(C) 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. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be. In any civil suit commenced under subparagraph (B) the district court shall compel the Secretary to apply the prohibition sought if the court finds that the allegation that an emergency exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A) of this section —
(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or
(iii) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this section —
(i) prior to sixty days after written notice has been given to the Secretary setting forth the reasons why an emergency is thought to exist with respect to an endangered species or a threatened species in the State concerned; or
(ii) if the Secretary has commenced and is diligently prosecuting action under section 1535(g)(2)(B)(ii) of this title to determine whether any such emergency exists.
(C) 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; except that such action may be brought immediately after such notification in the case of an action under this section respecting an emergency posing a significant risk to the well-being of any species of fish or wildlife or plants.
(3)(A) Any suit under this subsection may be brought in the judicial district in which the violation occurs.
(B) In any such suit under this subsection in which the United States is not a party, the Attorney General, at the request of the Secretary, may intervene on behalf of the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Secretary or a State agency).
Federal Defendants correctly argue that compliance with the 60 day notice provision of Section 1540(g) of the ESA is jurisdictional. InSouthwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.2d 515, 520 (9th Cir. 1998), the Ninth Circuit explained as follows:
Pursuant to section 1540(g) of the ESA, a citizen may not bring suit prior to sixty days after written notice of an alleged violation has been given' to the Secretary, and to the alleged violator. 16 U.S.C. § 1540(g)(2)(A)(i). This sixty-day notice requirement is jurisdictional. Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir. 1988). A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA. Lone Rock Timber Co. v. U.S. Dept. of Interior, 842 F. Supp. 433, 440 (D.Or. 1994). See also Hallstrom v. Tillamook County, 493 U.S. 20, 26-28, 110 S.Ct. 304, 308-10, 107 L.Ed.2d 237 (1989) (holding that the citizen suit notice requirements cannot be avoided by employing a flexible or pragmatic construction and that plaintiffs suit must be dismissed where plaintiff had not strictly complied with the notice requirements). "The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue. When given notice, the agencies have an opportunity to review their actions and take corrective measures if warranted. The provision therefore provides an opportunity for settlement or other resolution of a dispute without litigation." Forest Conservation Council v. Espy 835 F. Supp. 1202, 1210 (D.Id. 1993), aff'd, 42 F.3d 1399 (9th Cir. 1994). See also Hallstrom, 493 U.S. at 29, 110 S.Ct. at 310 (discussing the importance of giving sufficient notice of an alleged violation before bringing a citizen suit under an environmental statute in order to allow the agency to bring itself into compliance with environmental laws, or alternatively, to allow the Secretary to take action to bring the agency into compliance); Washington Trout, 45 F.3d at 1354 (stating the purpose of the notice provision is "to allow the parties time to resolve their conflicts in a nonadversarial time period," because once a suit is filed, "positions harden and compromise is less likely").
Federal Defendants argue that in the present case, Plaintiffs never submitted a 60 day notice to sue after the Service issued the final rule on the Buena Vista Lake shrew, and therefore did not comply with the requirement of Subsection(g).
Federal Defendants contend that Plaintiffs' notice of intent to sue submitted on January 25, 2002, before the final rule was issued, does not satisfy the ESA's jurisdictional notice provision. Federal Defendants argue that Plaintiffs cannot submit their 60 day notice to alleged violators of the ESA prior to the actual alleged violation. Federal Defendants cite Atlantic States Legal Foundation v. United Musical Instruments, 61 F.3d 473 (6th Cir. 1995), in which an organization ("ASLF") filed a citizens suit against a manufacturer for violations of the Emergency Planning and Community Right-to-Know Act's ("EPCRA") reporting requirements for storage and release of toxic chemicals. The United States Court of Appeals for the Sixth Circuit addressed the EPCRA requirement of notice before filing suit as follows:
In passing, we note that an additional and wholly independent reason supports the dismissal of ASLF's allegation that UMI failed to file a form R for the 1991 calendar year. That is, the district court lacked jurisdiction over the alleged 1991 violation because ASLF failed to provide adequate pre-suit notice of that violation as required by EPCRA. ASLF's notice, dated July 17, 1992, stated its intention to hold UMI accountable for violating EPCRA § 313 by failing to file form Rs for calendar years 1987-1990. The notice made no specific mention of a 1991 violation, although it noted that UMI "may also be responsible for violations not yet known to ASLF of other EPCRA reporting requirements." ASLF's complaint, however, alleged violations for calendar years 1988-1991.
In the RCRA context, the Supreme Court held that "the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the citizen suit provision; a district court may not disregard these requirements at its discretion." Hallstrom v. Tillamook County, 493 U.S. at 31, 110 S.Ct. at 311. Accordingly, when a citizen plaintiff fails to provide the required notice, "the district court must dismiss the action as barred by the terms of the statute." Id. at 33, 110 S.Ct. at 312.[FN6]
FN6. Although the Court did not determine whether the notice provision is jurisdictional in the strict sense of the term, it left no doubt that failure to comply requires dismissal. Hallstrom, 493 U.S. at 31, 110 S.Ct. at 311.
As the structure of EPCRA's notice provision is substantively identical to the analogous provision of RCRA,[FN7] it follows that sufficient notice is also a mandatory prerequisite to filing an enforcement action under EPCRA. ASLF does not dispute this obvious implication of Hallstrom but contends the notice of its intention to hold UMI liable for "violations not yet known" was sufficient to create jurisdiction over the alleged 1991 violation. We disagree. One of the important purposes of the notice requirement under environmental statutes is to facilitate "dispute resolution by EPA negotiation [and thereby] reduce the volume of costly litigation." Walls v. Waste Resource Corp., 761 F.2d 311, 317 (6th Cir. 1985). Here, ASLF's failure to include the 1991 violation in its notice may have contributed to the EPA's decision not to act. Moreover, the vague warning of possible other claims failed to inform UMI of the year of the additional alleged violation or even he specific EPCRA reporting requirement involved. For these reasons, the notice of the alleged 1991 violation was inadequate.
FN7. EPCRA's notice provision states as follows: "[n]o [citizen] action may be commenced . . . prior to 60 days after the plaintiff has given notice of the alleged violation to the Administrator, the State in which the alleged violation occurs, and the alleged violator." 42 U.S.C. § 11046(d).
The RCRA provision at issue in Hallstrom — which Congress subsequently amended-stated as follows:
(b) Actions prohibited.
No action may be commenced under paragraph (a)(1) of this section —
(1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator [of the EPA]; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of such permit, standard, regulation, condition, requirement, or order. Hallstrom, 493 U.S. at 25-26, 110 S.Ct. at 308-09 (citing 42 U.S.C. § 6972(b)(1)).
Federal Defendants also cite American Rivers v. NMFS, 109 F.3d 1484 (9th Cir. 1997), vacated and remanded on other grounds by American Rivers v. National Marine Fisheries Serv., 126 F.3d 1118 (9th Cir. 1997), in which environmental organizations challenged federal agencies' decision to move juvenile salmon downstream in trucks and barges to avoid a determination that the operation of the River Power System jeopardized the existence of the salmon. The United States Court of Appeals for the Eighth Circuit addressed the sixty-day notice requirement under ESA as follows:
American Rivers contends that this appeal is not moot because the 1995 Biological Opinion contains the same legal flaws as the preceding 1994-1998 Biological Opinion. The defendants respond that American Rivers cannot mount a legal attack on the 1995 Biological Opinion because the plaintiffs did not file the equired 60-day notice prior to initiating this lawsuit.
Section 11(g) of the Endangered Species Act permits citizens to sue to enforce ompliance with the Act. 16 U.S.C. § 1540(g). However, before a citizen can file an action, the citizen must give the Secretary of the Interior and any alleged violators written notice of intent to sue sixty days prior to filing suit. 16 U.S.C. § 1540(g)(2)(A)(i).[FN14] This requirement is jurisdictional. Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988).
FN14. Section 1540(g)(2)(A) provides: No action may be commenced under [the citizen suit provision]-
(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation.
In the present case, the plaintiffs notified the federal defendants on April 12, 1994, of their objections to the 1994-1998 Biological Opinion and their intent to sue. The letter stated, in pertinent part:
We understand that your agencies are planning to reevaluate the biological opinion in light of the court ruling in Idaho Dep't of Fish and Game v. National Marine Fisheries Service [ 850 F. Supp. 886] (D.Or. 1994). It is our hope that we can work with you during the reevaluation to cure the violations alleged below. The primary purpose of this letter is to provide notice of the scientific and legal deficiencies we perceive in the biological opinion, so that further resort to the judicial process can be avoided. Should you fail to remedy the alleged violations, however, this letter also provides the 60-day notice of intent to sue required under ESA § 11(g)(2), 16 U.S.C. § 1540 (g)(2). In particular, this letter provides notice of petitioners' intent to sue the National Marine Fisheries Service ("NMFS") over the 1994-1998 biological opinion and any revised or replacement biological opinion suffering from the deficiencies described below. This letter also provides notice of petitioners' intent to sue NMFS, the U.S. Army Corps of Engineers, the Bonneville Power Administration, and the Bureau of Reclamation over any Record of Decision on Federal Columbia Power System operations based on such an unlawful biological opinion or sharing the deficiencies described below.
(emphasis added) (abbreviations omitted). The plaintiffs contend that this letter satisfies the 60-day notice requirement and that they are not barred from suing for violations in the 1995 Biological Opinion because they explicitly stated in their letter that the notice applied not only to the 1994-1998 Biological Opinion, but also to "any replacement biological opinion." Additionally, on July 11, 1995, the plaintiffs filed another 60-day notice in which they specifically gave notice of their intent to sue based on the 1995 Biological Opinion. American Rivers argues it would be inequitable and a hypertechnical application of the 60-day notice requirement to require the plaintiffs to file a new lawsuit to challenge the transportation program m the 1995 Biological Opinion. In light of the fact that the district judge stayed the proceedings below, while NMFS revised the 1994-1998 Biological Opinion, plaintiffs' argument is well-taken. However, the Supreme Court in Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), made clear that the "notice and 60-day delay requirements are mandatory conditions precedent to commencing suit" and equitable arguments cannot overcome this notice defect.[FN15] Id. at 31, 110 S.Ct. at 311. Moreover, the citizen suit notice requirements cannot be avoided by employing a "flexible or pragmatic construction." Id. at 26, 110 S.Ct. at 309.
FN15. In Hallstrom, the Court interpreted the 60-day notice requirement of the Resources Conservation and Recovery Act of 1976, 42 U.S.C. § 6972 (b)(l). The court acknowledged the similarity between the RCRA 60-day notice provision and the 60-day notice provision of the ESA. Hallstrom, 493 U.S. at 23 n. 1, 110 S.Ct. at 307 n. 1. In Save the Yaak Comm. v. Block, 840 F.2d 714 (9th Cir. 1988), we relied on the reasoning of Hallstrom when we determined that the notice requirement in the ESA is jurisdictional. Id. at 721.
In Hallstrom, the plaintiffs owned a dairy farm which was located next to the Tillamook County landfill. Id. at 23, 110 S.Ct. at 307. The plaintiffs sent a 60-day notice of intent to sue to Tillamook County, but failed to notify the State of Oregon or the EPA of the alleged violations of RCRA. Id. at 23-24, 110 S.Ct. at 307-08. When the plaintiffs filed suit one year later, the defendants moved for summary judgment on the grounds that the plaintiffs failed to notify the State of Oregon and the EPA. Id. One day after the motion for summary judgment, the plaintiffs attempted to cure the notice defect by giving written notice to the EPA and the State of Oregon. Id. The district court found the notice defect was cured. Id. at 24 110 S.Ct. at 307-08. The Supreme Court, however, specifically rejected the contention that the 60-day notice provision was subject to equitable modification and cure. Id. at 27, 110 S.Ct. at 309. The Court held that despite the plaintiffs attempt to cure the deficient notice, the district court was required to dismiss the action as barred by the plain language of the statute. Id. at 33, 110 S.Ct. at 312-13. In the case at bar, a strict construction of the 60-day notice requirement may appear to be inequitable and a waste of judicial resources. Nonetheless, we lack authority to consider the equities. See Hallstrom, 493 U.S. at 32, 110 S.Ct. at 312. See also Washington Trout v. McCain Foods, Inc., 45 F.3d 1351 (9th Cir. 1995) (strictly construing the 60-day notice provision in the Clean Water Act and holding that the court lacked subject matter jurisdiction because environmental plaintiffs' notice of intent to sue did not list the names of the plaintiffs). Neither the April 1994 letter nor the July 1995 letter satisfy the 60-day notice requirement. The April 1994 letter provided the federal agencies with 60-day notice that the plaintiffs objected to the 1994-1998 Opinion. The July 1995 letter was sent after the. district court granted defendants' summary judgment motion. Although this second letter would be adequate notice of intent to sue in a future challenge of the 1995 Biological Opinion, it has no significance in the case at bar. In fact, the parties informed the court at oral argument that such a challenge to the 1995 Biological Opinion is now pending in district court in Oregon.
Therefore, because the plaintiffs failed to give timely written notice of intent to sue for the deficiencies in the 1995 Biological Opinion we lack jurisdiction and must dismiss this appeal. See Save the Yaak Committee v. Block, 840 F.2d at 721.Id.at 1491-93.
In the present case, Federal Defendants correctly state that Plaintiffs gave the Service notice of alleged violations of the ESA in the proposed rule to list the Buena Vista Lake shrew. Federal Defendants argue that a proposed rule under the ESA is not a final agency action. They citeBennett v. Spear, 520 U.S. 154, 178 (1997), in which the Supreme Court explained:
As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency's decisionmaking process, Chicago Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970).
Federal Defendants argue that after the Service issued its proposed rule to list the Buena Vista Lake shrew, the Service opened two separate 60 day comment periods and solicited information from interested parties. See 67 Fed. Reg. 10104 (March 6, 2002). See 67 Fed. Reg. 10104 (March 6, 2002). In addition, Federal Defendants argue that the Service also submitted the proposed rule to five peer reviewers for independent review. Id. Federal Defendants claim that the final rule incorporated all of the comments received during the two comment periods, the comments from the independent peer reviewers, and all of the new information concerning distribution, status, and threats to the Buena Vista Lake shrew since the publication of the proposed rule. They emphasize that almost two years lapsed between the time the proposed rule was published and the final rule was published.
Federal Defendants argue that despite these facts, Plaintiffs submitted their 60 day notice to the Service about the alleged violations in a final rule that was not going to be published for another forty days, based on information in the proposed rule which had been published two years earlier. Federal Defendants claim that Plaintiffs' notice was, in effect, a comment letter on the proposed rule submitted after the close of the comment period, and that it could not and did not serve as sufficient notice to the Service for alleged violations also in the actual final rule.
Finally, Federal Defendants argue that the Plaintiffs' amending of their complaint to add a Plaintiff sixty days after the violation took place does not render their notice sufficient. They cite Hallstrom, 493 U.S. at 27-29, discussed above in the quoted language from American Rivers, in which the Supreme Court held that the 60 day notice requirement under the Resources Conservation and Recovery Act ("RCRA") was not subject to equitable modification and cure and that notice given after the filing of a lawsuit was ineffective. Federal Defendants also cite K.C. 1986 Ltd. P'ship v. Reade Mfg., 33 F. Supp.2d 1143 (W.D. Mo. 1998), in which Borax filed its RCRA against Terracon, and then sent Terracon notice of an RCRA citizen suit. Borax subsequently filed an Amended Cross-Claim reiterating its RCRA claim against Terracon, and then Borax argued that the court should consider its RCRA suit "commenced" as of the date of the later, operative pleading. The court rejected this argument, holding that Borax could not remedy its failure to comply with the notice requirement of the RCRA by filing an amended cross-claim reiterating its RCRA claim.
Plaintiffs oppose Federal Defendants' motion to dismiss, raising several contentions. First, Plaintiffs contend that the court should not dismiss their ESA claims because they filed their first amended complaint on June 10, 2002, 135 days after providing notice to the Secretary of the ESA violations and 95 days after the Service published the final rule listing the Buena Vista Lake shrew as endangered. Plaintiffs argue that the first amended complaint supercedes the original complaint for all purposes and that they therefore complied with ESA's sixty-day notice requirement set forth in 16 U.S.C. § 1540(g)(2)(C).
In response, Federal Defendants contend in their reply that Plaintiffs have violated the prohibition in 16 U.S.C. § 1540(g)(2)(C) that, "No action may be commenced under subparagraph (1)(C) . . . prior to sixty days after written notice has been given to the Secretary." Federal Defendants argue that an action is "commenced" when the cause of action appears in the complaint, citing Zands v. Nelson, 779 F. Supp. 1254, 1258 (S.D. Cal. 1991). In that case, the court considered whether a RCRA claim, pleaded for the first time in a third amended complaint, met the notice and delay requirement of 42 U.S.C. § 6972(a)(1)(B). These provided that no action could be brought prior to ninety days after notice had been given. The court held that, "for the purposes of a notice and delay provision relating to a new claim which appears for the first time in the pleadings in the amended complaint, the Court will look to the filing of the amended complaint to determine when the "action" is commenced." Id. at 1259. Thus, the court concluded that notice that was sent out after the commencement of the lawsuit, but more than ninety days before the third amended complaint was filed, fully complied with the ninety days required by the statute.
Here, Federal Defendants argue that Plaintiffs filed their original complaint complete with their ESA causes of action on April 9, 2002, and their ESA causes of action therefore commenced on that date. Federal Defendants stress that Plaintiffs did not add their ESA causes of action later, as was the case in Zands, and that the only amendment to the complaint in the First Amended Complaint was the addition of County of Kern as a Plaintiff.
The court finds Federal Defendants' arguments meritorious and finds that Plaintiffs' action, including their ESA causes of action, was commenced on April 9, 2002, just over one month after the Service published the Final Rule listing the Buena Vista Lake shrew as an endangered species on March 6, 2002. The court finds that contrary to Plaintiffs' contention, Plaintiffs did not commence this action on June 10, 2002, the date of the filing of their first amended complaint.
Second, Plaintiffs contend that nothing in the ESA prohibits the filing of a 60 day notice before publication of the final rule it challenges. Plaintiffs argue that the only requirement under Section 1540(g)(2)(C) is that a notice of intent to sue be submitted 60 days prior to the commencement of an action. Plaintiffs argue that they filed their 60 day notice on January 25, 2002, and did not file the present lawsuit until April 9, 2002, after the expiration of the required 60 day delay period.
In response, Federal Defendants contend that notice given before an alleged violation occurs is no notice at all. In their reply, Federal Defendants argue that the ESA's citizen suit provision does not waive sovereign immunity to suits for future or anticipated failure of the Secretary to perform a nondiscretionary duty. They argue that the requirement that "no action may be commenced" alleging "a failure of the Secretary to perform any act or duty under section 1533 of [the ESA]. prior to sixty days after written notice has been given to the Secretary," 16 U.S.C. § 1540(g)(1)(C) and (g)(2)(C), indicates that the alleged failure must have already occurred before notice is given. Federal Defendants further argue that the citizen suit provision goes on to state that "Any suit under this subsection may be brought in the judicial district in which the violation occurs," 16 U.S.C. § 1540(g)(3)(A), again indicating that an actual violation must have occurred. Federal Defendants conclude that the plain language of the citizen suit provision requires that the Secretary have actually failed to perform some alleged duty under Section 1533 of the ESA and that a citizen give the Secretary notice of what the alleged violation is.
Federal Defendants argue that in the present case, Plaintiffs gave notice that in promulgating the final rule listing the Buena Vista Lake shrew, the Secretary failed to comply with the requirements in several sections of the ESA. Yet at the time they did so, no such final listing had been promulgated. Federal Defendants argue that the Secretary cannot have failed to comply with the ESA requirements that Plaintiffs allege before the Secretary took any final action to list the shrew, thus there was no alleged violation of which Plaintiffs could have provided notice.
Federal Defendants discuss American Rivers, quoted at length above, noting that the court found that the notice in that case was not particular to the subsequently issued 1995 biological opinion because the biological opinion did not exist at the time the notice was given. The court found, therefore, that it did not have jurisdiction to hear the plaintiffs' claims concerning the 1995 biological opinion. Federal Defendants argue that similarly, the notice in this case could not have been particular to the final rule listing the Buena Vista Lake shrew because the listing rule had not been issued when Plaintiffs sent their sixty-day notice of intent. Federal Defendants argue that this court therefore lacks jurisdiction to hear Plaintiffs' claims concerning the 1995 biological opinion.
Federal Defendants note that American Rivers was later overturned inAmerican Rivers v. National Marine Fisheries Service, 126 F.3d 1118 (9th Cir. 1997), in which the Ninth Circuit was responding to the decision inBennett v. Spear, 520 U.S. 154 (1997), in which the Court determined that challenges to the substance of a biological opinion are properly brought pursuant to the APA, not the citizen suit provision of the ESA. The Ninth Circuit determined in the second opinion that the plaintiffs' claims did not require sixty-days notice. Id. at 1124-25. Federal Defendants argue, however, and the court agrees, that the Ninth Circuit's treatment of the pre-violation notice when the court assumed that notice was required is still indicative of how the court would rule on the sufficiency of the pre-violation notice in this case.
After reviewing the arguments of the parties and their cited authorities, the court must conclude that the filing of Plaintiffs' 60 day notice to sue submitted on January 25, 2002, before the final rule was issued, does not satisfy the ESA's jurisdictional notice provision found at 16 U.S.C. § 1540(g)(2)(C). It is clear that a notice regarding violations in a Final Rule published by the Service cannot be given before such a Final Rule, and its alleged deficiences, exists.
Third, Plaintiffs contend that a 60 day notice confers the necessary subject matter jurisdiction if it is substantively adequate to provide notice of the ESA violations, regardless of whether it is served before or after the publication of the final rule it challenges. Plaintiffs rely on Southwest Center for Biological Diversity, 143 F.3d 515, which is quoted above. Plaintiffs argue that in Southwest Center for Biological Diversity. the Ninth Circuit did not address the timing of the 60-day notice, despite the fact that the 60-day notice was served prior to the publication of a final action by the Service, but simply held that the notice itself was substantively inadequate to put the Secretary on notice of the violations at issue. Id. at 519-21. Plaintiffs claim that the case may therefore be read to imply that, as long as a sixty — day notice is substantively adequate, the fact that it may have been served prior to the publication of the final rule it challenges is irrelevant, so long as the suit is not filed prior to the expiration of the sixty-day delay period.
Plaintiffs also rely on Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 996 (9th Cir. 2000), in which the Ninth Circuit held that a notice given before the adoption of the rule it challenged, which was substantively adequate to provide notice, did not need to be re-filed.
Federal Defendants contend in their reply that a high level of detail does not cure a pre-violation notice. Federal Defendants point out, inSouthwest Center for Biological Diversity, the court found that, "[a]t a minimum . . . Southwest was obligated to provide sufficient notice of a violation so that the Secretary or Reclamation could identify and attempt to abate the violation." Id. at 522. Federal Defendants also correctly argue that in ONRC Action v. Columbia Plywood, Inc., cited by Plaintiffs, the sixty-day citizen suit notice was not sufficient to alert a reasonable defendant to two Clean Water Act claims which were dismissed by the district court. Id. at 1143. The court also found that, "Were we to exercise jurisdiction over such claims when they were not disclosed by the citizen suit notice, we would usurp the right of the applicable governmental agencies to evaluate and act upon the merits of the claims prior to judicial review." Id. at 1144. As stated above, Plaintiffs contend that because the claims in these cases were dismissed for failure to give adequate substantive notice to the defendants, it follows that as long as notice is substantively adequate, it does not matter that the notice was given pre-violation. Defendants, on the other hand, contend that a court should never reach the point of analyzing the substantive adequacy of a notice when the notice alleges violations that have not yet happened and are merely predicted by the plaintiffs to occur at some unspecified point in the future.
In regard to Plaintiffs' reliance on Natural Resources Defense Counsel v. Southwest Marine, Inc., Federal Defendants argue that case involved a very different issue than is involved in the present case. In Southwest Marine, citizen groups sued to enforce provisions of the Clean Water Act ("CWA") against a shipyard operator allegedly discharging pollutants into the ocean. The CWA contains a sixty-day notice provision similar to that contained in the ESA. 33 U.S.C. § 1365(b). The suit alleged that the shipyard operator had failed to properly prepare and implement the pollution prevention plans required by its permits and the CWA. The Defendant amended its pollution prevention plan after it received the Plaintiffs' notice of violations, but before the plaintiffs filed their complaint. The defendants argued that the plaintiffs notice letter was insufficient because it did not cite to the specific provision of the subsequently revised plan that the plaintiffs sought to challenge. Id. at 996-98. The court determined that the notice was sufficient for the court to have subject matter jurisdiction over claims involving the revised plan because the original notice letter sufficiently put the defendants on notice of their violations. Id. at 997. As Federal Defendants point out, the present case is factually distinguishable from Southwest Marine, as the issue in the this case is whether the Plaintiffs can give notice for violations which have not occurred yet. This is not a case in which the Secretary submitted two final rules — one before the notice letter was sent and one afterwards.
After reviewing the arguments of and authorities cited by the parties, the court must agreed with Federal Defendant that to allow citizen enforcers to submit all-encompassing, detailed notices of intent to sue prior to the Secretary's taking any action which violates section 1533 of the ESA would undermine the purpose of the 60 day notice provision. The court finds in particular that the fact that a premature notice forecasts a violation that actually appears in a final rule promulgated by the Secretary does not change the fact that one cannot give notice of a violation which has not yet happened.
Fourth, Plaintiffs contend that because their complaint alleges jurisdiction under both the ESA and the APA, this court has subject matter jurisdiction over their ESA claims even if the court determines that Plaintiffs did not satisfy the ESA sixty-day notice requirement. Plaintiffs rely on Bennett v. Spear 520 U.S. 154, 175 (1996), which concerned a citizen suit under ESA concerning proposed use of reservoir water. Plaintiffs describe this case as holding that, "the APA provides independent jurisdiction for courts to hear ESA claims, even if jurisdiction under the ESA fails for any reason." Opposition, 9:8-9.
In Bennett v. Spear, the Court concluded that 16 U.S.C. § 1540 (g), ESA's citizen suit provision, did authorize review of the plaintiffs' claim based on a failure to perform a non-discretionary duty under Section 1533. Id. at 171. The court further found, however, that Section 1540 did not authorize review of the plaintiffs claim of a failure to comply with Section 1536. The court went on to state:
To complete our task, we must therefore inquire whether these § 1536 claims may nonetheless be brought under the Administrative Procedure Act, which authorizes a court to "set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706.
No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ESA's citizen-suit provision are exclusive supplanting those provided by the APA. The APA, by its terms, provides a right to judicial review of all "final agency action for which there is no other adequate remedy in a court," § 704, and applies universally "except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law," § 701(a). Nothing in the ESA's citizen-suit provision expressly precludes review under the APA, nor do we detect anything in the statutory scheme suggesting a purpose to do so. And any contention that the relevant provision of 16 U.S.C. § 1536(a)(2) is discretionary would fly in the face of its text, which uses the imperative "shall."Id. at 174-75. See also American Rivers, 126 F.3d at 1124-25 (holding that actions under the APA do not require the sixty-day notice required under the ESA). Based on this language, Plaintiffs contend that this court has jurisdiction over their ESA claims pursuant to APA, even if the court decides that it does not have jurisdiction under the ESA itself.
The court finds that Defendants are correct in arguing that Plaintiffs have misread the holding in Bennett v. Spear, which dealt with a situation in which no remedy was provided in the ESA for the claim the plaintiffs sought to bring of violations of Section 1536. In the present case, Federal Defendants seek dismissal of Plaintiffs claims numbers 1, 2, 5, 6, 8, and 9, all of which allege a breach of a nondiscretionary duty under Section 1533 ESA. As was held in American Rivers, Section 150 of the ESA expressly provides a remedy for such alleged breaches. Accordingly, this is not a situation in which "there is no adequate remedy in a court," as was the case in American Rivers. The court therefore rejects Plaintiffs' claim that this court has jurisdiction over their claims pursuant to the APA.
Fifth, Plaintiffs contend that dismissal of their complaint at this time would result in a waste of time for both the court and the parties, as it would only result in an unnecessary postponement of adjudication. Plaintiffs cite Thomas v. Union Carbide Agricultural Products, Co., 473 U.S. 568, 581-82 (1985), a case in which pesticide manufacturers brought an action challenging the constitutionality of the binding arbitration provision of the 1978 amendments to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). One of the two main issues before the court was the ripeness of the manufacturers' claims. It was in the context of addressing that issue that the Court made the statement relied upon by Plaintiffs that "[n]othing would be gained by postponing a decision, and the public interest would be well served by a prompt resolution" of the issue. Id. at 582. The factors considered in resolving ripeness do not create subject matter jurisdiction. The court finds, therefore, that this holding is not on point in the present case in which the existence of subject matter jurisdiction is at issue.
In light of all of the above, the court finds that it lacks subject matter jurisdiction to consider Plaintiffs' ESA claims. Therefore, Plaintiffs' claims numbers 1, 2, 5, 6, 8 and 9 will be dismiss for lack of subject matter jurisdiction without prejudice to Plaintiffs' right to file a properly noticed motion before the magistrate judge for permission to file a second amended complaint.
Center for Biological Diversity's Motion
Intervenor Center of Biological Diversity moves to dismiss claim 12 of Plaintiffs' first amended complaint for lack of jurisdiction and/or failure to state a claim upon which relief may be granted. In claim 12, Plaintiffs explicitly allege a violation of Section 603(a) of the Regulatory Flexibility Act ("RFA") as amended by the SBREFA "for Failure to Conduct a Regulatory Flexibility Analysis." Section 603 of the RFA, 5 U.S.C. § 603(a) provides in part as follows:
a) Whenever an agency is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial regulatory flexibility analysis. Such analysis shall describe the impact of the proposed rule on small entities. The initial regulatory flexibility analysis or a summary shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule.
Center for Biological Diversity claims that the jurisdiction over Plaintiffs' claim is premised on the judicial review provision of the RFA, 5 U.S.C. § 611, which provides in part that, "[c]ompliance or noncompliance by an agency with the provisions of this chapter shall be subject to judicial review only in accordance with this section." 5 U.S.C. § 611(c).
Center for Biological Diversity argues that while § 611(a)(1) provides expressly for review of compliance with § 604, which applies to final rules, it does not provide for review of compliance with § 603, which applies to proposed rules. Center for Biological Diversity further argues that it would be futile to amend Plaintiffs' complaint to allege a violation of § 604 rather than § 603, because Congress has stated that the RFA as a whole does not apply to decisions listing species under the ESA. Center for Biological Diversity relies on the following:
The Committee of Conference . . . adopted the House language which requires the Secretary to based determinations regarding the listing or delisting of species "solely" on the basis of the best scientific and commercial data available to him. As noted in the House Report, economic considerations have no relevance to determinations regarding the status of species and the economic requirements of Executive Order 12291, and such statutes as the Regulatory Flexibility Act and the Paperwork Reduction Act, will not apply to any phase of the listing process.
H.R. Conf. Rep. No. 835, 97 Cong., 2d Sess. 20 (1982); accord, H.R. Rep. No. 567, 97 Con., 2d Sess. 12, 19-20 (1982); S. Rep. No. 418, 97 Cong., 2d Sess. 4 (1982). Center for Biological Diversity cites the statement from the Federal Register that, "[t]he Service has concluded that the analyses required by the Regulatory Flexibility Act . . . [is] not applicable to listing determinations." 62 Fed. Reg. 14,338, 14,344 (March 26, 1997).
Based on the above, Center for Biological Diversity concludes that claim 12 of Plaintiff's first amended complaint should be dismissed for lack of jurisdiction and for failure to state a claim.
In response, Plaintiffs argue in their opposition to the motion to dismiss that the court should not dismiss their RFA claim because they premised this claim on Federal Defendants' failure to prepare a final regulatory flexibility analysis pursuant to Section 604 of the RFA, not on Section 603. In support of this argument, Plaintiffs rely on the language of their sixty-day notice served January 25, 2002, which was incorporated by reference into the Amended Complaint and on language in the Amended Complaint at paragraphs 16 and 56 in which Plaintiffs allege that Federal Defendants failed to conduct the required regulatory flexibility analysis in promulgating the final rule.
Further, in response to Center for Biological Diversity's argument that the RFA as a whole does not apply to decisions listing species under the ESA, Plaintiffs contend that they premised their RFA claim on Federal Defendants' failure to prepare a regulatory flexibility analysis for the designation of critical habitat for the Lake Shrew contemporaneously with its listing as an endangered species. Plaintiffs assert that their RFA claim does not go to the listing of the shrew itself. Plaintiffs cite their sixty-day notice, incorporated by reference into their amended complaint, in which alleges as follows:
The Secretary [of the Interior] violated section 4(a)(3) of the ESA by failing to designate critical habitat for the [Lake shrew] . . . concurrently with [its listing] . . . The Secretary violated section 4(b)(2) of the ESA and sections 604 and 605 of the RFA by failing to include an economic impact analysis and regulatory flexibility analysis . . . The Secretary may not designate critical habitat for the [Lake shrew] . . . unless it first complies with the requirements of the RFA and section 4(b)(2) of the ESA. Because the ESA requires listing and critical habitat determinations to occur concurrently . . . The Secretary is prohibited from listing the [Lake shrew] . . . as endangered until it complies with the ESA and the RFA.
Plaintiffs argue that their complaint at no point alleges that the RFA applies to rules listing species under the ESA and emphasize that their RFA cause of action is premised on Federal Defendants' failure to prepare a regulatory flexibility analysis regarding the designation of critical habitat for the Lake shrew contemporaneously with its listing as endangered.
In its reply, Center for Biological Diversity argues that if Plaintiffs seek to allege a violation of section 604 of the RFA in the Service's failure to comply with the requirements in issuing a critical habitat designation for the shrew, Plaintiffs claim is unripe. Center for Biological Diversity does not deny that the Service must comply with the RFA in issuing critical habitat designation for the shrew, but argues that it simply has not designated critical habitat for the shrew yet. Center for Biological Diversity contends that while that failure is an issue in this case, the Service cannot be sued for failure to comply with the RFA regarding an act that has yet to occur.
In so arguing, Center for Biological Diversity misses the point. Plaintiffs expressly contend that their claim is that Federal Defendants violated the RFA in not preparing a regulatory flexibility analysis contemporaneously with listing the shrew as endangered. The opportunity for such contemporaneous preparation of a regulatory flexibility analysis having now passed, the court finds the argument that Plaintiffs' claim is not ripe to be unconvincing.
After considering the arguments of the parties and their supporting authorities, the court finds that contrary to the claims they make in their opposition, claim 12 in Plaintiffs' amended complaint sets forth a claim for relief based on Section 603 of the RFA. It is undisputed that the judicial review provision of the RFA, 5 U.S.C. § 611, provides for compliance with Section 604, but does not provide for judicial review of Section 603. The court must therefore conclude that Plaintiffs have failed to meet their burden of demonstrating the existence of subject matter jurisdiction over claim 12 in their amended complaint. Accordingly, Center for Biological Diversity's motion to dismiss the claim for lack of subject matter jurisdiction will be granted without prejudice to Plaintiffs' right to file a properly noticed motion before the magistrate judge to file a second amended complaint to pursue a claim for relief based on Section 604.
Timeliness of Motions to Dismiss
Plaintiffs contend that both Federal Defendants' and Center for Biological Diversity's motions to dismiss should be dismissed on the ground that they are untimely. Plaintiffs argue that the motions to dismiss were brought pursuant to Rule 12(b), Federal Rules of Civil Procedure, which provides as follows (emphasis added):
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading theretllo if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Plaintiffs argue that in the present case, both Federal Defendants and Center for Biological Diversity filed their Rule 12(b) motions after they submitted their answers.
Plaintiffs speculate that Federal Defendants and the Center for Biological Diversity may argue that their motions to dismiss are timely because the court imposed the deadline by which motions to dismiss had to be filed, and the court did so after both parties had filed an answer. Scheduling Conference Order, filed July 24, 2002. Plaintiffs argue, however that the "scheduling conference order is a blanket scheduling order made without any specific regard for the timeliness of any motions made specifically under the authority of Rule 12(b), and cannot reasonably be interpreted so as to revivify the right to make motions that were, as of the time of the filing of the scheduling order, already untimely."
In response, Federal Defendants cite Rule 12(h)(3), which provides, "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Federal Defendants argue that the motions to dismiss are brought pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, and a defense of lack of subject matter jurisdiction cannot be waived. Federal Defendants correctly argue that in Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 522 (9th Cir. 1998), the Court of Appeals for the Ninth Circuit held that when notice was insufficient under ESA, "the district court had no choice but to dismiss the complaint against Reclamation for lack of subject matter jurisdiction." They also cite Southwest Marine, 236 F.3d at 995, in which the court stated that, "[i]f a party seeking to bring a citizen enforcement action has not complied with the [Clean Water Act's] notice requirement, then the district court in which that action is brought lacks subject matter jurisdiction and must dismiss the action." Federal Defendants argue that argue that similarly, Plaintiffs have not complied with the notice requirement of the citizen suit provision of the ESA, which is jurisdictional, and that this court must dismiss the action for lack of subject matter jurisdiction.
Center for Biological Diversity raises three arguments in response to Plaintiffs' contention that the motions to dismiss were untimely. First, Center for Biological Diversity argues that while its answer was lodged before it filed its motion to dismiss, the answer was not actually filed until the court granted its motion to intervene, which was after it filed its motion to dismiss. Center for Biological Diversity argues that Rule 24(c), Federal Rules of Civil Procedure, requires applicants for intervention to lodge a proposed answer with their motion to intervene, yet a non-party may not make a motion. Center for Biological Diversity argues that it is therefore unclear when Plaintiffs would have had Center for Biological Diversity file its motion.
Second, Center for Biological Diversity argues that it included in its lodged answer as affirmative defenses its arguments for dismissal, as well as those made by Federal Defendants, and that "courts have allowed untimely motions if the defense has been previously included in the answer." Wright Miller, Federal Practice and Procedure, § 1361 at 445-46, text accompanying note 7 (1990) (citations omitted). Center for Biological Diversity argues that it joins in the motion made by Federal Defendants, and that Federal Defendants' motion should therefore be heard on the basis that its claims were raised in Center for Biological Diversity's answer.
Third, Center for Biological Diversity argues that both its and Federal Defendants' motions challenge the court's subject matter jurisdiction over Plaintiffs' claims. It notes that in Augustine v. United States, 704 F.2d 1074, 1075 n. 3 (9th Cir. 1983, the Court of Appeals for the Ninth Circuit explained as follows:
FN3. The government's motion was framed as a Fed.R.Civ.P. 12(b)(1) motion to dismiss. Because that motion was made after the government's responsive pleading, it was technically untimely. The matter of subject matter jurisdiction, however, may be raised by the parties at any time pursuant to Fed.R.Civ.P. 12(h)(3), and the government's motion was thus properly before the court as a Rule 12(h)(3) suggestion of lack of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); Csibi v. Fustos, 670 F.2d 134, 136 n. 3 (9th Cir. 1982); Wright Miller § 1350, at 544-45, 548.
Rule 12(h)(3) provides, "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Center for Biological Diversity concludes that Plaintiffs' argument that the court can proceed in this case without examining the basis for subject matter jurisdiction is unavailing.
Fourth and finally, Center for Biological Diversity argues that Plaintiffs mischaracterize the scheduling order in this case by referring to it as a "blanket scheduling order." It argues that the ordered was crafted specifically for this case after a scheduling conference was held with all the parties and that Plaintiffs provide no authority for the proposition that the court cannot enlarge the time for filing a motion to dismiss. Center for Biological Diversity argues that Plaintiffs did not object to the schedule at the time of the scheduling conference.
The court finds that the motions to dismiss, both of which were filed on August 22, 2002, were timely under the court's Scheduling Conference Order, which set the deadline for filing motions to dismiss for August 23, 2002. The court further finds that the Scheduling Conference Order was not a blanket order, as suggested by Plaintiffs, but rather an order specifically directed to the circumstances of this case, entered into after a scheduling conference was held at which all parties were represented. The court concludes, therefore, that Plaintiffs' contention that the motions to dismiss were untimely is without merit.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED as follows:
1) Federal Defendants' motion to dismiss claims 1, 2, 5, 6, 8 and 9 for lack of subject matter jurisdiction is GRANTED without prejudice to Plaintiffs' right to file a properly noticed motion before the magistrate judge for permission to file a second amended complaint;
2) Center for Biological Diversity's motion to dismiss claim 12 is GRANTED without prejudice to Plaintiffs' right to file a properly noticed motion before the magistrate judge for permission to file a second amended complaint.