Center For Biological Diversity v. Raimondo

Background

The Center for Biological Diversity and Turtle Island Restoration Network challenged a December 1, 2023 rule issued by Secretary of Commerce Gina Raimondo and the National Marine Fisheries Service. The rule reopened nearly 2,000 square miles of leatherback sea turtle critical habitat to sablefish pot fishing, including parts of a conservation area that had been closed since the early 2000s and part of the leatherback’s principal feeding area.

The complaint asserted three causes of action. Counts one and two alleged violations of the Endangered Species Act: the first alleged that the Fisheries Service failed to reinitiate and complete consultation, and the second alleged that it unlawfully relied on a 2012 biological opinion. Count three alleged violations of the Magnuson-Stevens Fishery Conservation and Management Act and the Administrative Procedure Act concerning the issuance of the reopening rule.

Motion and parties’ arguments

The defendants moved to dismiss counts one and two because the plaintiffs had not provided the Endangered Species Act’s required written notice at least 60 days before bringing suit. The parties agreed that the plaintiffs had not provided that notice.

The plaintiffs argued that notice was unnecessary because the substance of their claims involved the Magnuson-Stevens Act, whose provisions should therefore apply. They also argued that the Endangered Species Act’s 60-day notice period conflicted with the Magnuson-Stevens Act’s 30-day filing deadline, and that filing the Endangered Species Act claims after beginning a lawsuit under other statutes would not advance the Magnuson-Stevens Act’s policy objectives.

Court’s analysis

The court rejected the argument that the first two claims were really Magnuson-Stevens Act claims. It distinguished claims attacking the reopening of a fishery from these claims, which alleged that the Fisheries Service violated the Endangered Species Act by failing to complete consultation and by relying on the 2012 biological opinion.

The court also concluded that the two statutes’ requirements could coexist. Relying on Ninth Circuit authority, it explained that a plaintiff could provide the required Endangered Species Act notice, file a complaint asserting non-Endangered Species Act claims, and later amend the complaint to add the Endangered Species Act claims after the 60-day notice period expired. The plaintiffs therefore could have complied with both the 30-day Magnuson-Stevens Act deadline and the 60-day Endangered Species Act notice requirement.

The court acknowledged tension between the two time requirements but found no authority supporting waiver of the notice requirement when plaintiffs failed to provide the required notice. The opinion also noted that the Ninth Circuit had recently characterized the notice requirement as a mandatory claims-processing rule rather than a jurisdictional prerequisite.

Disposition

The court granted the partial motion to dismiss counts one and two and dismissed the first two counts of the complaint. The order did not state an additional prejudice qualifier.