Center for Biological Diversity v. Bernhardt

• Court: District Court, District of Columbia
• Decided: March 8, 2023
• Docket: Civil Action No. 2020-0573
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiff,

v. No. 20-573 (EGS) DEBRA HAALAND, in her official capacity as Secretary of the United States Department of the Interior, 1 et al.,

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiff, the Center for Biological Diversity (the

“Center”), brings this action against Defendants Debra Haaland,

in her official capacity as Secretary of the United States

Department of the Interior; and Martha Williams, 2 in her

official capacity as Director of the United States Fish and

Wildlife Service (the “FWS” or the “Service”), (collectively

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current Secretary of the United States Department of the Interior, Debra Haaland, is substituted as Defendant for the former Secretary of the United States Department of the Interior, David Bernhardt. See Fed. R. Civ. P. 25(d). 2 Pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, the current Director of the United States Fish and Wildlife Service, Martha Williams, is substituted as Defendant for the former Director of the United States Fish and Wildlife Service, Aurelia Skipwith. See Fed. R. Civ. P. 25(d). 1 “Defendants”). See Compl., ECF No. 1. 3 The Center seeks to

compel Defendants to take certain actions under the Endangered

Species Act, 16 U.S.C. §§ 1531–1544 (“ESA” or “Act”): (1) to

make 12-month findings for 231 species, 16 U.S.C. §

1533(b)(3)(B); (2) to publish final listing determinations for

six species, id. § 1533(b)(6)(A); and (3) to make critical

habitat designations for four species, id. § 1533(a)(3)(A)(i),

(b)(6)(A)(ii)(I), (b)(6)(C). See Compl., ECF No. 1 ¶¶ 259-64.

Pending before the Court is Defendants’ Motion for Partial

Dismissal, ECF No. 12. Upon careful consideration of the

parties’ submissions, the applicable law, and the entire record

herein, the Court hereby GRANTS IN PART and DENIES IN PART

Defendants’ Motion for Partial Dismissal.

II. Background

A. Statutory and Regulatory Background

The ESA “represent[s] the most comprehensive legislation

for the preservation of endangered species ever enacted by any

nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180

(1978). Congress passed this legislation “to provide a means

whereby the ecosystems upon which endangered species and

threatened species depend may be conserved, [and] to provide a

3 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 2 program for the conservation of such endangered species and

threatened species.” 16 U.S.C. § 1531(b). “The plain intent of

Congress in enacting this statute was to halt and reverse the

trend toward species extinction, whatever the cost.” Hill, 437

U.S. at 184.

The ESA mandates that the Secretary of the Interior and the

Secretary of Commerce 4 determine whether any species should be

listed as endangered 5 or threatened 6 according to five

enumerated statutory factors. See 16 U.S.C. §§ 1532(15),

1533(a). Listing a species as endangered or threatened triggers

certain legal protections. See, e.g., id. §§ 1533-1538.

Section 4 of the ESA sets forth the procedure by which a

species may be listed as endangered or threatened. See id. §

1533. Any “interested person” may petition the FWS to list a

4 The Act requires that the Secretary of the Interior make listing determinations for terrestrial species and that the Secretary of Commerce make listing determinations for most marine species. See 16 U.S.C. §§ 1532(15), 1533(a)(2). The Secretaries have delegated their responsibilities to the FWS and the National Marine Fisheries Service, respectively. See In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1, 3 n.3 (D.D.C. 2011), aff’d sub nom. In re Endangered Species Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972 (D.C. Cir. 2013). 5 The ESA defines “endangered species” as “any species which is

in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). 6 The ESA defines “threatened species” as “any species which is

likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). 3 species. Id. § 1533(b)(3)(A). The Act requires that, “[t]o the

maximum extent practicable, within 90 days,” the FWS 7 make an

initial “finding as to whether the petition presents substantial

scientific or commercial information indicating that the

petitioned action may be warranted.” Id. (describing the “90-day

finding”). If the FWS determines that the petition does not

present substantial information indicating that listing may be

warranted, the agency rejects the petition, and the process

concludes. See id. If, however, the FWS determines that the

petition does present substantial information indicating that

listing may be warranted, the agency must publish that finding

in the Federal Register and conduct a scientific review of the

status of the species. Id. (detailing the “status review”).

The ESA further requires that the FWS issue one of the

following determinations “[w]ithin 12 months after receiving a

petition”: (1) listing is “warranted”; (2) listing is “not

warranted”; or (3) listing is “warranted, but . . . precluded”

by other pending proposals for listing species, provided certain

circumstances are present. Id. § 1533(b)(3)(B) (discussing the

“12-month finding”). The agency must publish this determination

in the Federal Register. See id. “The ESA permits no exceptions

to this 12–month mandatory deadline.” In re Endangered Species

7 The Secretary has delegated this and other duties in the ESA to the FWS. See supra n.3. 4 Act Section 4 Deadline Litig., 277 F.R.D. at 4 (D.D.C. 2011);

Friends of Animals v. Ashe, 808 F.3d 900, 903 (D.C. Cir. 2015)

(“But even if it is not practicable, the Service must make an

initial determination within 12 months of receiving the listing

petition.”). 8

The process concludes here for any species for which the

FWS determines listing is not warranted. See 16 U.S.C. §

1533(b)(3)(B)(i). Alternatively, for species whose listing is

warranted, the FWS must “publish in the Federal Register a

general notice and the complete text of a proposed regulation to

implement such action.” Id. § 1533(b)(3)(B)(ii). Within one year

of publishing that proposed listing rule, the agency must

publish the final listing determination in the Final Register.

Id. § 1533(b)(6)(A).

A species whose listing is warranted but precluded is

considered a candidate for listing under the ESA. See 2022

Candidate Notice of Review (“CNOR”), 87 Fed. Reg. 26,152 (May 3,

2022) (“A candidate species is one for which we have on file

sufficient information on biological vulnerability and threats

to support a proposal for listing as endangered or threatened,

8 The ESA permits the FWS to “extend the one-year period . . . for not more than six months for purposes of soliciting additional data” provided that the agency has found “that there is substantial disagreement regarding the sufficiency or accuracy of the available data.” 16 U.S.C. § 1533(b)(6)(B)(ii)– (iii). 5 but for which preparation and publication of a proposal is

precluded by higher priority listing actions.”). The FWS must

“publish [this] finding in the Federal Register, together with a

description and evaluation of the reasons and data on which the

finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii). The agency

must treat this petition as one that has been resubmitted for

consideration. Id. § 1533(b)(3)(C)(i). As a result, the FWS must

make a new determination within 12 months as to whether listing

is warranted or warranted but precluded. See id. The agency must

also “implement a system to monitor effectively the status” of

these candidate species “to prevent a significant risk to the

well being of any such species.” Id. § 1533(b)(3)(C)(iii).

Additionally, the ESA mandates that the agency designate

critical habitats 9 “to the maximum extent prudent and

determinable . . . concurrently with making a determination . .

9 The ESA defines the critical habitat for an endangered or threatened species as: (i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . , on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . , upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A). 6 . that a species is an endangered species or a threatened

species.” Id. § 1533(a)(3)(A)(i). The agency must make this

designation “on the basis of the best scientific data available

and after taking into consideration the economic impact, the

impact on national security, and any other relevant impact, of

specifying any particular area as critical habitat.” Id. §

1533(b)(2).

As with the listing procedure, the process for designating

critical habit is governed by statutory deadlines. See id. §

1533(a)(3)(A)(i). However, if critical habitat is not

determinable at the time of listing, the Act empowers the agency

to extend its deadline to designate critical habitat by “no more

than one additional year.” Id. § 1533(b)(6)(C)(ii). At that

time, the FWS “must publish a final regulation, based on such

data as may be available at that time, designating, to the

maximum extent prudent, such habitat.” Id.

B. Factual

This case concerns “the ongoing failure” of the FWS to

comply with statutory deadlines for listing species as

threatened or endangered and for designating critical habitats

for these species. Compl., ECF No. 1 ¶ 1. In 2011, following

multi-district litigation, the FWS entered into two settlement

agreements requiring it to complete hundreds of listing

determinations. See id. ¶ 46 (citing Order Granting Joint Mot.

7 for Approval of Settlement Agreement and Order of Dismissal of

Center for Biological Diversity’s Claims, In re Endangered

Species Act Section 4 Deadline Litig., No. 1:10-mc-00377-EGS,

MDL No. 2165 (D.D.C. Sept. 9, 2011), ECF No. 56; Order Granting

Joint Mot. for Approval of Settlement Agreement and Order of

Dismissal of WildEarth Guardians’ Claims, ECF No. 55). As part

of these settlement agreements, the Center agreed to limit its

challenges to the agency’s failures to make timely

determinations to no more than 10 species each year. See

Stipulated Settlement Agreement, In re Endangered Species Act

Section 4 Deadline Litig., Misc. No. 10-377 (D.D.C. July 12,

2011), ECF No. 42-1 ¶ B(10)(c).

In September 2016, the FWS announced its multi-year

National Listing Workplan for completing the more than 200

overdue findings required by law but not captured by the

Settlement Agreement. See Compl., ECF No. 1 ¶ 47. The agency

updated this Workplan in May 2019 to address its planned actions

for the following five-year period. See id. ¶ 49. Despite the

agency’s commitments in these Workplans, the FWS missed

statutory deadlines for 30 species in fiscal year 2017, 78

species in fiscal year 2018, and 46 species in fiscal year 2019.

See id. ¶ 48.

At the time the Center filed the Complaint, the

organization alleged that the FWS had failed to make listing

8 determinations and/or critical habitat designations for 241

species. See id. ¶ 5. Specifically, the Center claims that: (1)

the agency has not completed a 12-month finding for 231 species,

see id. ¶ 50-200, 259-60; (2) the agency has not completed a

final listing determination for six species, see id. ¶¶ 201-40,

261-62; and (3) the agency has not made a proposed or final

critical habitat designation for four species, see id. ¶¶ 241-

58, 263-64.

C. Procedural

The Center filed this lawsuit on February 27, 2020. See

Compl., ECF No. 1. On May 4, 2020, Defendants filed this motion,

which requests dismissal of the Center’s claims with respect to

various species. See Defs.’ Mot. Partial Dismissal, ECF No. 12

at 1; Mem. in Supp. Defs.’ Mot. Partial Dismissal (“Defs.’

Mot.”), ECF No. 12-1 at 1-2. The Center filed its opposition

brief on June 8, 2020, see Pl.’s Opp’n Defs.’ Mot. Partial

Dismissal (“Pl.’s Opp’n”), ECF No. 17; and Defendants filed

their reply brief on June 25, 2020, see Reply Mem. in Supp.

Defs.’ Mot. Partial Dismissal (“Defs.’ Reply”), ECF No. 18.

In August 2021, the Court granted the parties’ request that

the case be stayed so that they could enter into mediation.

Minute Order (Aug. 16, 2021). Mediation resulted in three

stipulated settlement agreements, narrowing the dispute between

9 the parties. See ECF No. 28, ECF No. 37, and ECF No. 38.

Defendants’ ripe motion is now ready for adjudication.

III. Legal Standard

A. Rule 12(b)(1) Motion to Dismiss

“Federal courts lack jurisdiction to decide moot cases

because their constitutional authority extends only to actual

cases or controversies.” Iron Arrow Honor Soc’y v. Heckler, 464

U.S. 67, 70 (1983) (per curiam). “A case becomes moot—and

therefore no longer a ‘Case’ or ‘Controversy’ for purposes of

Article III—when the issues presented are no longer live or the

parties lack a legally cognizable interest in the

outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013) (citation and internal quotation marks omitted). “This

occurs when, among other things, the court can provide no

effective remedy because a party has already obtained all the

relief that [it has] sought.” Conservation Force v. Jewell, 733

F.3d 1200, 1204 (D.D.C. 2013) (citation and internal quotation

marks omitted).

“A motion to dismiss for mootness is properly brought under

Rule 12(b)(1) because mootness itself deprives the court of

jurisdiction.” Indian River Cnty. v. Rogoff, 254 F. Supp. 3d 15,

18 (D.D.C. 2017). “Because Rule 12(b)(1) concerns a court’s

ability to hear a particular claim, the court must scrutinize

the plaintiff’s allegations more closely when considering a

10 motion to dismiss pursuant to Rule 12(b)(1) than it would under

a motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S.

Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citing

Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.

2003)). In so doing, the court must accept as true all of the

factual allegations in the complaint and draw all reasonable

inferences in favor of the plaintiff, but the court need not

“accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations.” Rann v. Chao,

154 F. Supp. 2d 61, 64 (D.D.C. 2001).

B. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (citation and internal quotation marks

omitted).

Despite this liberal pleading standard, to survive a motion

to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

11 (citation and internal quotation marks omitted). “In determining

whether a complaint fails to state a claim, [the court] may

consider only the facts alleged in the complaint, any documents

either attached to or incorporated in the complaint and matters

of which [the court] may take judicial notice.” EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997). A claim is facially plausible when the facts pled in the

complaint allow the court to “draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678. The standard does not amount to a “probability

requirement,” but it does require more than a “sheer possibility

that a defendant has acted unlawfully.” Id.

“[W]hen ruling on a defendant’s motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint.” Atherton v.

D.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)

(citation and internal quotation marks omitted). In addition,

the court must give the plaintiff the “benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

12 IV. Analysis

A. The Center’s Claim Regarding the Island Marble Butterfly is Moot

Federal courts possess constitutional authority to exercise

jurisdiction only over “actual, ongoing controversies.” McBryde

v. Comm. to Review Circuit Council Conduct, 264 F.3d 52, 55

(D.C. Cir. 2001) (citation omitted). Accordingly, a court must

determine if there is a live controversy “‘through all stages’

of the litigation.” 21st Century Telesis Joint Venture v.

F.C.C., 318 F.3d 192, 198 (D.C. Cir. 2003) (quoting Lewis v.

Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). “Even where

litigation poses a live controversy when filed,” Clarke v.

United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc); the

court may not decide “[i]f events outrun the controversy such

that the court can grant no meaningful relief,” McBryde, 264

F.3d at 55.

Defendants move to dismiss the Center’s claim regarding the

island marble butterfly (Euchloe ausonides insulanus) as moot.

See Defs.’ Mot., ECF No. 12-1 at 20. They explain that, since

the Center filed the Complaint, the FWS has completed a final

listing determination and critical habitat designation for the

species. See id.; see also 85 Fed. Reg. 26,786 (May 5, 2020)

(listing species as endangered and designating its critical

13 habitat). 10 The Center “does not contest dismissal of the

Complaint with respect to th[is] species.” Pl.’s Opp’n, ECF No.

17 at 32.

The Court agrees that the island marble butterfly claim is

moot. The Center sought injunctive and declaratory relief for

Defendants’ failure to make a final listing determination and

critical habitat designation. Compl., ECF No. 1 ¶¶ 213-19, 261-

64; id. at 60-61 (Request for Relief). The agency has now

completed both acts, and the Center has “obtained all the relief

that [it] sought.” Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C.

Cir. 1984); see also People for the Ethical Treatment of

Animals, Inc. v. U.S. Fish & Wildlife Serv., 59 F. Supp. 3d 91,

96 (D.D.C. 2014) (“That mootness of a claim against a specific

agency action also moots claims for declaratory relief over

those specific agency actions is well-attested in D.C. Circuit

precedent.”). There is nothing left for the Court to order. Cf.

Conservation Force, 733 F.3d at 1204 (holding that the agency’s

publication of a 12-month finding “render[ed] moot” the

10In their motion, Defendants explain that “[t]he Federal Register will publish the final listing determination and critical habitat designation for the island marble butterfly on May 5, 2020, and has also made FWS’s finding available for public inspection today [May 4, 2020].” Defs.’ Mot., ECF No. 12- 1 at 20 n.9. The Court may “take judicial notice of materials published in the Federal Register.” Banner Health v. Sebelius, 797 F. Supp. 2d 97, 112 (D.D.C. 2011) (citing 44 U.S.C. § 1507 (“The contents of the Federal Register shall be judicially noticed.”)). 14 plaintiff’s challenge to the agency’s failure to publish a 12-

month finding for the same species on an earlier petition).

Because there is no remaining controversy, the Court DISMISSES

the claim regarding the island marble butterfly as moot. See

Conservation Force v. Salazar, 851 F. Supp. 2d 39, 45 (D.D.C.

2012).

B. The Court Does Not Have Jurisdiction Over the Center’s Claims Regarding Four Other Species

Defendants move to dismiss the Center’s claims with respect

to the following species because their listing petitions have

been withdrawn: Comal Springs salamander (Eurycea sp. 8), desert

massasauga (Sistrurus catenatus edwardsii), Wet Canyon

talussnail (Sonorella macrophallus), and yellow pond-lily

(Nuphar lutea ssp. sagittifolia). See Defs.’ Mot., ECF No. 12-1

at 22-25. The Center “does not contest dismissal of the

Complaint with respect to th[ese] species.” Pl.’s Opp’n, ECF No.

The Court concludes that it does not have jurisdiction over

these four listing petitions. The ESA’s citizen-suit provision

permits parties to file a civil action “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.” 16 U.S.C. 1540(g)(1)(C). As with any other waiver of

sovereign immunity, this provision must “be strictly construed,

15 in terms of its scope, in favor of the sovereign.” Lane v. Pena,

518 U.S. 187, 192 (1996). It follows, then, that the plaintiff

first “must identify a non-discretionary, statutory duty.”

Conservation Force v. Salazar, 753 F. Supp. 2d 29, 35 (D.D.C.

2010), aff’d, 699 F.3d 538 (D.C. Cir. 2012). One applicable duty

is for the FWS to make 12-month findings for the listing

petitions it receives. See 16 U.S.C. § 1533(b)(3)(B); Friends of

Animals v. Jewell, 828 F.3d 989, 991 (D.C. Cir. 2016) (“The

Secretary’s duty to comply with [S]ection 4’s 12-month finding

provision—once triggered by a positive 90-day finding—is non-

discretionary and therefore falls within the citizen-suit

provision.”). There is no such duty without an operative

petition. See Coos Cnty. Bd. of Cnty. Comm’rs v. Kempthorne, 531

F.3d 792, 804 (9th Cir. 2008); cf. Ashe, 808 F.3d at 904

(explaining that the FWS “cannot violate the duty to make a

final determination before that duty has come into existence”).

Here, the Secretary has no duty to act because the petitions for

the four species listed above have been withdrawn. See Ltr. from

Ms. Curry to Mr. Miranda, ECF No. 12-2 (withdrawing petition for

yellow pond-lily); Ltr. from Ms. Cotton to Mr. Yang, ECF No. 12-

3 (withdrawing petition for Wet Canyon talussnail); Ltr. from

Ms. Jones to Ms. Lueders, ECF No. 12-4 (withdrawing petitions

16 for Comal Springs salamander and desert massasauga). 11

Consequently, the Center has not satisfied the requirements to

sue under the ESA’s citizen-suit provision.

Nor does the Court possess jurisdiction over this or any

other claim in the Complaint on the basis of the Administrative

Procedure Act (“APA”). In the Complaint, the Center brought its

claims under the ESA’s citizen-suit provision and, in the

alternative, under the APA. See Compl., ECF No. 1 ¶¶ 259-64.

“[T]he APA by its terms independently authorizes review only

when ‘there is no other adequate remedy in a court.’” Bennett v.

Spear, 520 U.S. 154, 161–62 (1997) (quoting 5 U.S.C. § 704). The

ESA’s citizen-suit provision provides such a remedy for the

Center’s claims. Conservation Force v. Salazar, 715 F. Supp. 2d

99, 104 n.6 (D.D.C. 2010) (citing 16 U.S.C. § 1540(g)(1)).

Because the ESA presents an avenue for review of agency action,

relief under the APA is unavailable. See Coos Cnty., 531 F.3d at

810. In other words, despite the styling in the Complaint, the

Center’s claims may be construed only as ESA claims, not as APA

claims.

11On a Rule 12(b)(1) motion, “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). 17 Accordingly, the Court DISMISSES the Center’s 12-month

finding claims for the Comal Springs salamander, desert

massasauga, Wet Canyon talussnail, and yellow pond-lily.

C. The Center Did Not Comply with the ESA’s Notice Requirement as to the Panama City Crayfish

The ESA prohibits a potential plaintiff from filing a civil

action “prior to sixty days after written notice has been given

to the Secretary.” 16 U.S.C. § 1540(g)(2)(C). This requirement

“is a mandatory, not optional, condition precedent for suit.”

Ashe, 808 F.3d at 903 (citations and internal quotation marks

omitted). This notice letter “must, at a minimum, ‘provide

sufficient information of a violation so that the Secretary or

[agency] [can] identify and attempt to abate the violation.’”

Rsch. Air, Inc. v. Norton, No. CIV.A. 05-623 (RMC), 2006 WL

508341, at *10 (D.D.C. Mar. 1, 2006) (quoting Sw. Ctr. for

Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d

515, 520 (9th Cir. 1998)).

Panama City crayfish (Procambarus econfinae) for failure to

comply with this notice requirement. See Defs.’ Mot., ECF No.

12-1 at 25-27. They cite the Center’s notice letter and explain

that the letter discusses “a potential claim for failure to

propose critical habitat” but not a potential claim for failure

to make a final listing determination. Id. at 26 (citing Ltr.

18 from Mr. Greenwald to Sec’y Bernhardt, ECF No. 12-5 at 9). 12 The

Center “does not contest dismissal of the Complaint with respect

to th[is] species.” Pl.’s Opp’n, ECF No. 17 at 32.

The Court agrees with Defendants that the Center has not

complied with the notice requirement for the Panama City

crayfish. The Center’s letter to the Secretary includes only one

violation for the Panama City crayfish for which the

organization “intend[ed] to seek a judicial order to compel the

Service’s action if the Service d[id] not remedy . . . within

the next 60 days”: the agency’s failure to propose critical

habitat. Ltr. from Mr. Greenwald to Sec’y Bernhardt, ECF No. 12-

5 at 3, 9 (citing 16 U.S.C. § 1540(g)(2)(C)). Because this

letter did not notify the Secretary that the Center also

intended to challenge FWS’ failure to complete the 12-month

finding for the species, the letter is ineffective notice as to

the organization’s 12-month finding claim. Conservation Force,

715 F. Supp. 2d at 104 (“[I]t would be unfair to permit this

claim to proceed.”). The Court therefore DISMISSES the claim

regarding the Panama City crayfish.

12The Court may consider this notice letter in ruling on Defendants’ Motion to Dismiss. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (“In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” (citations and internal quotation marks omitted)). 19 D. The Center’s Claims Regarding 192 Species Are Not Time- Barred

Finally, Defendants move to dismiss the Center’s claims

regarding the agency’s failure to make 12-month findings for 192

species. See Defs.’ Mot., ECF No. 12-1 at 27. 13 They argue that:

(1) the claims are time-barred; (2) the claims should not be

equitably tolled; and (3) the Center has another adequate

remedy. See id. at 27-43. The Center contests all of Defendants’

arguments. See Pl.’s Opp’n, ECF No. 17 at 16-32. For the reasons

that follow, the Court determines that the Center’s claims are

timely and DENIES Defendants’ motion.

The parties rightly agree that the ESA does not contain any

provision specifying a statute of limitations. See Defs.’ Mot.,

ECF No. 12-1 at 27; see generally Pl.’s Opp’n, ECF No. 17 at 16-

31; 16 U.S.C. §§ 1531–1544. Instead, they dispute whether a

different statute of limitations applies to the Center’s claims:

28 U.S.C. § 2401(a). See 28 U.S.C. § 2401(a). This statute

states that “every civil action commenced against the United

States shall be barred unless the complaint is filed within six

years after the right of action first accrues.” Id. Defendants

argue that Section 2401(a) must apply to the Center’s claims

13Defendants’ motion to dismiss claims as time-barred includes the four species addressed in Part IV.B. of this Opinion. Because the Court has already determined that it does not have jurisdiction over claims regarding those species, it will not consider those species again here. 20 because it is “presumptively applicable to ‘every civil action

commenced against the United States.’” Defs.’ Reply, ECF No. 18

at 8 (emphasis omitted) (quoting 28 U.S.C. § 2401(a)).

The Center does not deny that “Section 2401 is a general

catchall statute that applies to all civil actions against the

government.” Felter v. Norton, 412 F. Supp. 2d 118, 124 (D.D.C.

2006); see Pl.’s Opp’n, ECF No. 17 at 16-31. Nevertheless, it

argues that this six-year limitations period does not apply to

its claims because the FWS’ “failure to make timely 12-month

findings for hundreds of species constitutes a continuing

violation of the Act.” Pl.’s Opp’n, ECF No. 17 at 28. The

continuing violation doctrine is an exception to the general

rule that “‘[a] claim normally accrues when the factual and

legal prerequisites for filing suit are in place.’” Earle v.

Dist. of Columbia, 707 F.3d 299, 306 (D.C. Cir. 2012) (quoting

Norwest Bank Minn. Nat’l Ass’n v. FDIC, 312 F.3d 447, 451 (D.C.

Cir. 2002)). Although “[t]his doctrine is ‘muddled,’” the D.C.

Circuit recognizes at least two applications: (1) where the

“character [of the challenged conduct] as a violation did not

become clear until it was repeated during the limitations

period, typically because it is only its cumulative impact . . .

that reveals its illegality”; and (2) where “the text of the

pertinent law imposes a continuing obligation to act or refrain

from acting.” Id. at 306-07 (citations omitted).

21 The Center argues that the text of the ESA imposes a

continuing obligation on the FWS to make 12-month findings for

petitioned species. See Pl.’s Opp’n, ECF No. 17 at 17. 14 Whether

the text imposes a continuing obligation on the agency “is a

question of statutory construction.” Earle, 707 F.3d at 307. The

statutory language at issue instructs that the FWS “shall make”

its finding on a listing petition “[w]ithin 12 months after

receiving a petition.” 16 U.S.C. § 1533(b)(3)(B). The Center

interprets this text by looking to the purpose of the Act and

its legislative history—specifically, for the 1978 and 1982

amendments to the Act requiring the FWS to act on petitions by

certain mandatory deadlines. See Pl.’s Opp’n, ECF No. 17 at 17-

18 (citing 16 U.S.C. § 1533(b)(3); H.R. Rep. No. 97-835 at 20–22

(1982) (Conf. Rep.)). The 12-month listing deadline “‘replace[d]

the Secretary’s discretion with mandatory, nondiscretionary

duties’” in order to address the “‘footdragging efforts of a

delinquent agency.’” Id. at 9 (emphasis omitted) (quoting H.R.

Rep. No. 97-835 at 20–22). These deadlines, the Center explains,

are meant to “‘expedite the decisionmaking process and . . .

14The Center does not argue that the “character [of the challenged conduct] as a violation did not become clear until it was repeated during the limitations period, typically because it is only its cumulative impact . . . that reveals its illegality.” Earle, 707 F.3d at 306-07 (citation omitted). The Court therefore will not consider this application of the continuing violation doctrine. 22 ensure prompt action,’” id. (quoting H.R. Rep. No. 97-835 at

19); not “shield [the agency’s] ongoing failure to act from

challenge,” id. at 18.

The D.C. Circuit has not yet decided whether Section 4

imposes a continuing obligation on the FWS to act on listing

petitions, and the parties contest the significance of the

circuit’s related caselaw. The Center cites three D.C. Circuit

cases to support its position that a statute of limitations is

“inapplicable in cases challenging ‘not . . . what the agency

has done but rather . . . what the agency has yet to do.’” Pl.’s

Opp’n, ECF No. 17 at 16-17 (quoting In re United Mine Workers of

Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999)). The Court

considers each case briefly.

In In re United Mine Workers, the D.C. Circuit considered a

petition for a writ of mandamus to compel the Department of

Labor to issue final regulations controlling diesel engine

exhaust in coal mines. See 190 F.3d at 546. The statute at issue

required the Secretary of Labor to issue final regulations, or

to explain why she would not issue final regulations, within

ninety days of the certification of the record of a hearing, see

id. at 550 (citing 30 U.S.C. § 811(a)(4)); and required that

petitions for review of any regulations be filed within sixty

days of promulgation, see id. at 548 (citing 30 U.S.C. §

811(d)). The D.C. Circuit allowed the suit to proceed even

23 though the union sued eight years after the agency missed its

deadline “[b]ecause the [union] does not complain about what the

agency has done but rather about what the agency has yet to do.”

See id. at 549. The court’s analysis thus centered solely on the

fact that the statute required the agency to act and the agency

had not yet acted. See id. at 548-49.

The decision in In re Bluewater Network, 234 F.3d 1305

(D.C. Cir. 2000) is similar. There, the petitioners filed for a

writ of mandamus to compel the Coast Guard to issue regulations

pursuant to the Oil Pollution Act nine years after the

statutorily imposed deadline. See 234 F.3d at 1307. Even though

the act imposed a 90-day statute of limitations on challenges to

any regulations, see id. at 1308 (citing 33 U.S.C. § 2717(a));

the court permitted the challenge as timely because “[t]he

statute compels the agency to establish . . . standards” and

“[w]hat is at issue in this case is the absence of any

regulations,” see id. at 1314. As in In re United Mine Workers,

the decision here turned entirely on the agency’s inaction

against a statutory mandate to act. See id.

Both of these cases involved fact patterns like the one at

issue here. Each case concerned a statute that requires an

agency to take some action by a particular deadline. See 16 §

1533(b)(3)(B); In re United Mine Workers, 190 F.3d at 550; In re

Bluewater, 234 F.3d at 1307. Each statute is governed by a

24 statute of limitations. See 28 U.S.C. § 2401(a) (ESA); In re

United Mine Workers, 190 F.3d at 548; In re Bluewater, 234 F.3d

at 1308. The agency in each case failed to take the statutorily

required action. See supra; In re United Mine Workers, 190 F.3d

at 546; In re Bluewater, 234 F.3d at 1307. And in each case, the

challenge is to the agency’s failure to act pursuant to its

statutory mandate. See In re United Mine Workers, 190 F.3d at

546; In re Bluewater, 234 F.3d at 1307; Compl., ECF No. 1 ¶¶ 1-

260.

The Center also cites Wilderness Society v. Norton, 434

F.3d 584 (D.C. Cir. 2006). See Pl.’s Opp’n, ECF No. 17 at 19-20.

In this case, the D.C. Circuit observed that it “has repeatedly

refused to hold that actions seeking relief under 5 U.S.C. §

706(1) to ‘compel agency action unlawfully withheld or

unreasonably delayed’ are time-barred if initiated more than six

years after an agency fails to meet a statutory deadline.”

Norton, 434 F.3d at 588 (quoting 5 U.S.C. § 706(1)). Although

this language is an accurate summary of the circuit’s caselaw,

the Court will discount it as dictum because it was not

necessary for resolution of the case. See id. at 589 (noting

that the court “need not reach a final determination on this

[time-bar] issue” because the plaintiff lacked standing).

Defendants raise two points to shield themselves from

application of these cases. First, they argue that the holdings

25 in In re United Mine Workers and In re Bluewater are limited to

unreasonable delay claims in the APA and mandamus contexts. See

Defs.’ Reply, ECF No. 18 at 23-24. The Court disagrees. The

statute of limitations issue did not turn on any

Telecommunications Research & Action Center v. FCC, 750 F.2d 70

(D.C. Cir. 1984) (“TRAC”) factor or anything else specific to

the APA or mandamus context. See In re United Mine Workers, 190

F.3d at 549-56; In re Bluewater, 234 F.3d at 1312-16. Indeed,

the court considered the TRAC factors only in relation to its

analysis of the merits of these cases. See In re United Mine

Workers, 190 F.3d at 549-56; In re Bluewater, 234 F.3d at 1312-

16. Second, Defendants claim that these holdings are limited to

rulemaking challenges. See Defs.’ Reply, ECF No. 18 at 24 n.7.

This description is also inaccurate since neither case discusses

the rulemaking context in its analysis of the statute of

limitations issue. See In re United Mine Workers, 190 F.3d at

548-49; In re Bluewater, 234 F.3d at 1307-15.

Despite this authority, Defendants urge the Court to adopt

a different interpretation for the ESA. They explain that the

statute imposes a “one-time obligation” to make a 12-month

finding. Defs.’ Reply, ECF No. 18 at 15 (emphasis omitted).

“[T]his sort of requirement,” they continue, “only imposes ‘a

duty of timeliness’ for the “‘specified action [to] be taken by

a date-certain deadline.’” Defs.’ Mot., ECF No. 12-1 at 36

26 (quoting Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir.

1987)). By this logic, the ESA does not impose a continuing

obligation on the FWS to act, and the agency’s failure to make

12-month findings is merely a “discrete unlawful event.” Defs.’

Mot., ECF No. 12-1 at 36 (quoting Earle, 707 F.3d at 306).

To support this argument, Defendants cite binding D.C.

Circuit authority that “the lingering effect of an unlawful act

is not itself an unlawful act” and “cannot be a continuing wrong

which tolls the statute of limitations.” AKM LLC dba Volks

Constructors v. Sec’y of Lab., 675 F.3d 752, 757 (D.C. Cir.

2012) (internal quotation marks omitted) (quoting Earle, 707

F.3d at 306). But this is not relevant to determining the

Center’s continuing violation claim. Compare Pl.’s Opp’n, ECF

No. 17 at 17 (arguing only for the second application of the

continuing violation exception), and Earle, 707 F.3d at 306

(discussing the passage quoted in AKM in the context of the

first application of the continuing violation exception).

Defendants also cite a pair of cases from the Fifth and

Eleventh Circuits discussing the continuing violation doctrine

in the context of ESA claims. In both cases, the petitioners

challenged the agency’s failure to make critical habitat

designations. See Gen. Land Off. v. U.S. Dep’t of the Interior,

947 F.3d 309, 318-19 (5th Cir. 2020); Ctr. For Biological

Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006).

27 While these cases are on point, the Court will not adopt their

reasoning. Both the Fifth and Eleventh Circuits concluded that

Section 4 does not impose a continuing obligation on the FWS in

part because Section 2401(a) “is a jurisdictional condition

attached to the government’s waiver of sovereign immunity, and

as such must be strictly construed.” Hamilton, 453 F.3d at 1334,

1335; see Gen. Land Off., 947 F.3d at 318. The D.C. Circuit has

since clarified that Section 2401(a) is not a jurisdictional bar

and therefore should be construed like other limitations

periods. Jackson v. Modly, 949 F.3d 763, 776 (D.C. Cir. 2020),

cert. denied sub nom. Jackson v. Braithwaite, 141 S. Ct. 875

(2020). This change in law calls into question the overall

conclusions in Hamilton and General Land Office. It also

provides further support for the Court to consider the statute

of limitations applicable to the ESA in the same vein as other

limitations periods for other statutes, as in In re United Mine

Workers and In re Bluewater.

Accordingly, the Court concludes that the ESA imposes a

continuing duty on the FWS to make 12-month findings for

petitioned species. Because the FWS is under a continuing

obligation to act and has not yet acted, the Center’s claims

have not accrued. The Court therefore DENIES Defendants’ Motion

28 to Dismiss the Center’s 12-month finding claims as time-

barred. 15

V. Conclusion

For the foregoing reasons, the Court GRANTS IN PART and

DENIES IN PART Defendants’ Motion for Partial Dismissal. See ECF

No. 12. The Center’s claims regarding the 192 species awaiting a

12-month finding may proceed.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 8, 2023

15The Court need not reach the parties’ arguments as to whether the statute of limitations should be equitably tolled. 29