Opinion
No. C05-1878Z.
March 9, 2010
ORDER
This matter comes before the Court on Plaintiffs' Motion for Summary Judgment, docket no. 27, Defendants' Cross-Motion for Summary Judgment, docket no. 28, and Plaintiffs' Motion for the Court to Consider Extra Record Evidence, docket no. 30. Having considered the papers of the parties, the governing law, and the balance of the record, the Court now enters the following Order.
I. Background
II. Standard of Review
Salmon Spawning Recovery Alliance v. Basham477 F. Supp. 2d 1301Salmon Spawning Recovery Alliance v. U.S. Customs and Border Prot. 550 F.3d 1121 Salmon Spawning Recovery Alliance v. Basham see also id. Western Watersheds Project v. Matejko468 F.3d 10991107See5 U.S.C. § 702Salmon Spawning550 F.3d at 1132Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv.340 F.3d 969973 5 U.S.C. § 706 See Ashcroft v. Iqbal___ U.S. ___129 S.Ct. 19371949Bell Atlantic Corp. v. Twombly550 U.S. 544570
To the extent Plaintiffs allege a substantive "jeopardizing the species" ESA Section 7(a)(2) claim in Paragraphs 40-46 of the Complaint (which the courts have previously construed as a claim under ESA Section 9), see Salmon Spawning, 550 F.3d at 1127 n. 3, the Court now dismisses that claim for the same reasons outlined in this Order as the basis for the Court's dismissal of Plaintiffs' procedural "failure to consult" ESA Section 7(a)(2) claim.
III. Plaintiffs' Motion for the Court to Consider Extra Record Evidence
The Court DENIES Plaintiffs' Motion for the Court to Consider Extra Record Evidence, docket no. 30, as moot in light of the Court's taking Plaintiffs' allegations as true in the absence of an administrative record.
IV. Cross-Motions for Summary Judgment
A. Salmon Import Ban
The ESA prohibits the import of endangered species into the United States by any person. 16 U.S.C. § 1538(a)(1)(A). The National Marine Fisheries Service ("NMFS"), the agency with jurisdiction over ESA-listed salmon, has, by regulation, extended the ESA's import prohibition to threatened salmon. 50 C.F.R. § 402.01(b); 50 C.F.R. § 222.205(a). Customs and FWS are charged by law with enforcing the ban on the import of ESA-listed salmon. See 19 C.F.R. § 12.26(g)(1).
B. Agency Action
ESA Section 7(a)(2) defines "agency action" as "any action authorized, funded, or carried out by" a federal agency. 16 U.S.C. § 1536(a)(2). Section 7 applies to "all actions in which there is discretionary Federal involvement or control." 50 C.F.R. § 402.03.
Plaintiffs' Section 7(a)(2) claim is premised on complaints about the unexercised enforcement discretion of Customs and FWS at the U.S. ports of entry where fishermen are importing ESA-listed salmon from Canada into the United States. Although courts have construed "agency action" very broadly, see Tennessee Valley Authority ("TVA") v. Hill, 437 U.S. 153, 173 (1978), there must be affirmative agency action. See California Sportfishing Prot. Alliance v. Fed. Energy Regulatory Comm'n ("FERC"), 472 F.3d 593, 595 (9th Cir. 2006); Western Watersheds, 468 F.3d at 1108. In most of the cases relied upon by Plaintiffs, there was no question that there was affirmative agency action. In TVA v. Hill, for example, the agency clearly authorized, funded and carried out the construction of a dam that threatened the habitat of the endangered snail darter. 437 U.S. at 173. In National Association of Home Builders v. Defenders of Wildlife, the Environmental Protection Agency ("EPA") transferred National Pollution Discharge Elimination System permitting authority to the State of Arizona, and the Supreme Court held that there was no duty to consult under ESA Section 7(a)(2) as a result of the non-discretionary nature of the agency action, not as a result of a lack of affirmative agency action. 551 U.S. 644, 671-73 (2007).
In three cases relied upon by Plaintiffs, the courts held that there was "ongoing agency action" sufficient to trigger the duty to consult under ESA Section 7(a)(2). In Turtle Island Restoration Network, NMFS issued fishing permits. 340 F.3d at 974. In Pacific Rivers Council v. Thomas, the Forest Service implemented Land and Resource Management Plans. 30 F.3d 1050, 1053 (9th Cir. 1994). In Washington Toxics Coalition v. Environmental Protection Agency, the EPA registered pesticides. 413 F.3d 1024, 1028 (9th Cir. 2005). These "ongoing agency action" cases are distinguishable from the present case in which there is no plan, program or activity governing Customs' or FWS's enforcement of the salmon import ban. Plaintiffs have admitted that "none of the Defendant agencies have issued any policies, guidelines, or other directives regarding the way in which Customs and FWS personnel operating U.S. ports of entry are supposed to handle imports of salmon that may be ESA-listed Northwest salmon caught in Canadian waters." Pls.' Mot. Extra Record Evid., docket no. 30, at 2. And Defendants point out, correctly, that they are not granting any "licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid" to the fishermen who import ESA-listed salmon.See 50 C.F.R. § 402.02(b).
There are five cases discussed by the parties where the agency actions were not considered to be ongoing agency actions because the agencies lacked sufficient discretion over the completed agency actions to regulate the private action at issue. In Western Watersheds, the Bureau of Land Management ("BLM") retained insufficient discretion after granting rights-of-way to regulate water diversions by private landowners. 468 F.3d at 1109-11. In California Sportfishing, FERC retained insufficient discretion after issuing a permit for a hydroelectric dam to influence the dam operations by PG E. 472 F.3d at 598-99. In Sierra Club v. Babbitt, the BLM retained insufficient discretion over a rights-of-way holder to regulate a road construction project by that private party. 65 F.3d 1502, 1509, 1511-12 (9th Cir. 1995). In Environmental Protection Information Center v. Simpson Timber, the FWS retained insufficient discretion over an incidental take permit granted to a timber company to require re-initiation of consultation in light of new species listings. 255 F.3d 1073, 1082-83 (9th Cir. 2001). In Center for Biological Diversity v. Chertoff, the Coast Guard retained insufficient discretion under a Traffic Separation Scheme. 2009 WL 839042, at *6 (N.D. Cal. Mar. 30, 2009). In the present case, there is no affirmative agency action, past or present, and thus the discretion issue is not dispositive. See Ctr. for Biological Diversity v. Chertoff, 2009 WL 839042, at *6 ("Discretion, without more, is insufficient to trigger the consultation requirements of § 7(a)(2)").
The alleged failure of Customs and FWS to enforce the salmon import ban does not constitute agency action within the meaning of ESA Section 7(a)(2).
C. NMFS Defendants
Plaintiffs do not allege a violation of law by the following Defendants: (1) Gary Locke, sued in his official capacity as Secretary of the Department of Commerce, (2) the United States Department of Commerce, (3) Barry Thom, sued in his official capacity as Acting Northwest Regional Administrator of NMFS, and (4) NMFS (collectively the "NMFS Defendants"). See Defenders of Wildlife v. Flowers, 414 F.3d 1066, 1070 (9th Cir. 2005) (NMFS "lacks the authority to require the initiation of consultation."). The Court dismisses the NMFS Defendants as a result of Plaintiffs' failure to state a claim against them. See Potter v. Clark, 497 F.2d 1206, 1208 (7th Cir. 1974) ("Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed."). Plaintiffs oppose the dismissal of the NMFS Defendants because, Plaintiffs argue, "their presence in the case is needed to assure an adequate remedy is available for Customs' and FWS's violation of § 7 of the ESA." Pls.' Resp., docket no. 29, at 9. The Court rejects this argument because NMFS's administration of the ESA cannot form the basis for an injunctive relief action under the ESA's citizen suit provision, 15 U.S.C. § 1540(g)(1)(A). See Bennett v. Spear, 520 U.S. 154, 173 (1997).
V. Conclusion
The Court DENIES Plaintiffs' Motion for Summary Judgment, docket no. 27, GRANTS Defendants' Cross-Motion for Summary Judgment, docket no. 28, and DENIES Plaintiffs' Motion for the Court to Consider Extra Record Evidence, docket no. 30. The Court DISMISSES Plaintiffs' Section 7(a)(2) claim with prejudice.
IT IS SO ORDERED.