1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CENTER FOR BIOLOGICAL Case No. 23-cv-06642-AMO DIVERSITY, et al., 8 Plaintiffs, ORDER GRANTING PARTIAL 9 MOTION TO DISMISS v. 10 Re: Dkt. No. 14 GINA RAIMONDO, et al., 11 Defendants.
12 13 Defendants seek to dismiss the two causes of action Plaintiffs bring under the Endangered 14 Species Act for failure to provide the mandatory 60-day notice of intent to sue. Defendants’ 15 motion to dismiss was heard before this Court on May 16, 2024. Having read the papers filed by 16 the parties, carefully considered their arguments therein and those made at the hearing, as well as 17 the relevant legal authority, the Court hereby GRANTS the partial motion to dismiss for the 18 following reasons. 19 I. BACKGROUND 20 A. Factual Background1 21 Plaintiffs Center for Biological Diversity and Turtle Island Restoration Network challenge 22 a rule issued by Defendants Secretary of Commerce Gina Raimondo and the National Marine 23 Fisheries Service (collectively, the “Fisheries Service”). In 1970, the Fisheries Service listed 24 leatherback sea turtles as endangered, and in 2012, designated the critical sea turtle habitat to 25 include waters of the West Coast of the United States. ECF 1 (“Compl.”) ¶ 51. After a 26
27 1 The Court accepts Plaintiffs’ allegations in the complaint as true and draws all reasonable 1 comprehensive status review of leatherback sea turtles in 2020, the Fisheries Service found that 2 the West Pacific leatherback sea turtle is a distinct population of endangered species under the 3 Endangered Species Act. Compl. ¶¶ 52-53. As of 2017, there are only 1,053 nesting females, 4 placing leatherbacks at a great risk of extinction. Compl. ¶ 55. The West Pacific leatherback 5 population has been declining by approximately six percent annually through 2017. Compl. ¶ 56. 6 The Fisheries Service manages “groundfish” that live on or near the bottom of the ocean, 7 including sablefish. Compl. ¶ 66. In Washington, Oregon, and California, there are pot fisheries 8 where heavy pots or traps are linked along the seafloor, with the ends attached to a line that runs to 9 buoys. Compl. ¶ 67. Such pot fishing occurs in areas and during the time of year when the West 10 Pacific leatherback migrates seasonally to feed off the West Coast. Compl. ¶ 69. Leatherbacks 11 have been entangled in the coastal pot fisheries and killed by fishing vessel strikes. Compl. ¶ 70. 12 In 2012, the Fisheries Service issued a Biological Opinion assessing the effects of the pot 13 fishery on endangered and threatened species and their critical habitats, including the leatherback 14 sea turtles. Compl. ¶ 74. The 2012 Biological Opinion anticipated that the pot fishery would 15 injure or kill 1.9 leatherback sea turtles over five years (or 0.38 annually). Compl. ¶ 75. It 16 calculated this risk by including interactions observed in the pot fishery as well as those 17 attributable to unidentifiable fishing gear. Compl. ¶ 76. 18 On December 1, 2023, the Fisheries Service promulgated a rule (the “Reopening Rule”) to 19 open nearly 2,000 square miles of leatherback sea turtle critical habitat to sablefish pot fishing. 20 Compl. ¶ 81. The Reopening Rule specifically allows sablefish pot gear in parts of a conservation 21 area that have been closed since the early 2000s to protect overfished rockfish (a type of 22 groundfish) and allows fishing closer to shore. Compl. ¶¶ 81-82. The Reopening Rule changed 23 the boundary in the leatherback critical habitat, allowing the pot fishery to set pots in 407 square 24 miles of the leatherback’s principal feeding area. Compl. ¶ 88. The pot fishery’s operation over a 25 larger area of leatherback critical habitat “increases the risk of leatherback entanglement and 26 adversely modifies the critical habitat . . . [.]” Compl. ¶ 83. 27 The Fisheries Service determined that there were no anticipated impacts of the Reopening 1 Biological Opinion. Compl. ¶ 86. The Fisheries Service did not reinitiate or complete 2 consultation on the impacts of the Reopening Rule on leatherback sea turtles and their designated 3 critical habitat. Compl. ¶ 92. 4 B. Procedural Background 5 On December 28, 2023, Plaintiffs Center for Biological Diversity (the “Center”) and Turtle 6 Island Restoration Network (“Turtle Island”) (collectively, “Plaintiffs”) filed a lawsuit against 7 Defendants Gina Raimondo, U.S. Secretary for Commerce, and National Marine Fisheries Service 8 (collectively, “Fisheries Service” or “Defendants”), alleging three causes of action challenging the 9 Reopening Rule issued by Defendants under the Magnuson-Stevens Fishery Conservation and 10 Management Act (“MSA”). Plaintiffs allege violation of the Endangered Species Act (“ESA”) for 11 failure to reinitiate and complete consultation (count one), violation of the ESA and 12 Administrative Procedure Act (“APA”) for unlawful reliance on the 2012 Biological Opinion 13 (count two), and violation of the MSA and APA for unlawful issuance of the Reopening Rule 14 (count three). Plaintiffs request declaratory relief that the Fisheries Service has violated each of 15 these statutes, and that the Court vacate certain Reopening Rule provisions and order Defendants 16 to complete ESA consultation and issue a new biological opinion within 90 days. On February 26, 17 2024, through the instant motion, Defendants move to dismiss the first two causes of action. ECF 18 14. 19 II. DISCUSSION 20 Defendants move to dismiss the first two causes of action for lack of subject matter 21 jurisdiction due to Plaintiffs’ failure to comply with the ESA’s 60-day notice provision. ECF 14 22 (“Mot.”) at 21. The ESA contains a citizen suit provision that provides a cause of action and 23 mandates that “[n]o action may be commenced . . . prior to sixty days after written notice of the 24 violation has been given to the Secretary, and to any alleged violator of any such provision or 25 regulation.” 16 U.S.C. § 1540(g)(1)-(2). “A failure to strictly comply with the notice requirement 26 acts as an absolute bar to bringing suit under the ESA.” Sw. Ctr. for Biological Diversity v. U.S. 27 Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998). Until recently, the Ninth Circuit has 1 Timber Co., 105 F.4th 1144, 1150 (9th Cir. 2024) (citing Save the Yaak Comm. v. Block, 840 F.2d 2 714, 721 (9th Cir. 1988)). The Ninth Circuit has now clarified that the ESA notice requirement “is 3 a mandatory claims-processing rule, not a jurisdictional predicate.” Id. at 1153.2 4 The parties agree that Plaintiffs did not provide the required notice. Defendants contend 5 that, as a result, the Court must dismiss the ESA claims. Mot. at 21-24. Plaintiffs advance three 6 reasons they did not need to comply with the ESA’s notice provision: (1) where, as here, the ESA 7 claims are substantively MSA claims, only the MSA jurisdictional provisions apply; (2) the ESA’s 8 60-day notice requirement conflicts with the MSA’s 30-day statute of limitations, and, as a result, 9 the MSA’s “more specific” jurisdictional provision controls; and (3) filing ESA claims after 10 initiating a lawsuit pursuant to other statutes does not promote the policy objectives of the MSA. 11 ECF 19 (“Opp.”) at 10-17. The Court addresses each in turn. 12 1. The ESA Claims are Distinct from the MSA Claim 13 Plaintiffs first contend that notice under the ESA is not required here because the substance 14 of the first two causes of action are MSA violations, and therefore the MSA jurisdictional 15 provision occurs. Opp. at 12-14. The Court cannot agree.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CENTER FOR BIOLOGICAL Case No. 23-cv-06642-AMO DIVERSITY, et al., 8 Plaintiffs, ORDER GRANTING PARTIAL 9 MOTION TO DISMISS v. 10 Re: Dkt. No. 14 GINA RAIMONDO, et al., 11 Defendants.
12 13 Defendants seek to dismiss the two causes of action Plaintiffs bring under the Endangered 14 Species Act for failure to provide the mandatory 60-day notice of intent to sue. Defendants’ 15 motion to dismiss was heard before this Court on May 16, 2024. Having read the papers filed by 16 the parties, carefully considered their arguments therein and those made at the hearing, as well as 17 the relevant legal authority, the Court hereby GRANTS the partial motion to dismiss for the 18 following reasons. 19 I. BACKGROUND 20 A. Factual Background1 21 Plaintiffs Center for Biological Diversity and Turtle Island Restoration Network challenge 22 a rule issued by Defendants Secretary of Commerce Gina Raimondo and the National Marine 23 Fisheries Service (collectively, the “Fisheries Service”). In 1970, the Fisheries Service listed 24 leatherback sea turtles as endangered, and in 2012, designated the critical sea turtle habitat to 25 include waters of the West Coast of the United States. ECF 1 (“Compl.”) ¶ 51. After a 26
27 1 The Court accepts Plaintiffs’ allegations in the complaint as true and draws all reasonable 1 comprehensive status review of leatherback sea turtles in 2020, the Fisheries Service found that 2 the West Pacific leatherback sea turtle is a distinct population of endangered species under the 3 Endangered Species Act. Compl. ¶¶ 52-53. As of 2017, there are only 1,053 nesting females, 4 placing leatherbacks at a great risk of extinction. Compl. ¶ 55. The West Pacific leatherback 5 population has been declining by approximately six percent annually through 2017. Compl. ¶ 56. 6 The Fisheries Service manages “groundfish” that live on or near the bottom of the ocean, 7 including sablefish. Compl. ¶ 66. In Washington, Oregon, and California, there are pot fisheries 8 where heavy pots or traps are linked along the seafloor, with the ends attached to a line that runs to 9 buoys. Compl. ¶ 67. Such pot fishing occurs in areas and during the time of year when the West 10 Pacific leatherback migrates seasonally to feed off the West Coast. Compl. ¶ 69. Leatherbacks 11 have been entangled in the coastal pot fisheries and killed by fishing vessel strikes. Compl. ¶ 70. 12 In 2012, the Fisheries Service issued a Biological Opinion assessing the effects of the pot 13 fishery on endangered and threatened species and their critical habitats, including the leatherback 14 sea turtles. Compl. ¶ 74. The 2012 Biological Opinion anticipated that the pot fishery would 15 injure or kill 1.9 leatherback sea turtles over five years (or 0.38 annually). Compl. ¶ 75. It 16 calculated this risk by including interactions observed in the pot fishery as well as those 17 attributable to unidentifiable fishing gear. Compl. ¶ 76. 18 On December 1, 2023, the Fisheries Service promulgated a rule (the “Reopening Rule”) to 19 open nearly 2,000 square miles of leatherback sea turtle critical habitat to sablefish pot fishing. 20 Compl. ¶ 81. The Reopening Rule specifically allows sablefish pot gear in parts of a conservation 21 area that have been closed since the early 2000s to protect overfished rockfish (a type of 22 groundfish) and allows fishing closer to shore. Compl. ¶¶ 81-82. The Reopening Rule changed 23 the boundary in the leatherback critical habitat, allowing the pot fishery to set pots in 407 square 24 miles of the leatherback’s principal feeding area. Compl. ¶ 88. The pot fishery’s operation over a 25 larger area of leatherback critical habitat “increases the risk of leatherback entanglement and 26 adversely modifies the critical habitat . . . [.]” Compl. ¶ 83. 27 The Fisheries Service determined that there were no anticipated impacts of the Reopening 1 Biological Opinion. Compl. ¶ 86. The Fisheries Service did not reinitiate or complete 2 consultation on the impacts of the Reopening Rule on leatherback sea turtles and their designated 3 critical habitat. Compl. ¶ 92. 4 B. Procedural Background 5 On December 28, 2023, Plaintiffs Center for Biological Diversity (the “Center”) and Turtle 6 Island Restoration Network (“Turtle Island”) (collectively, “Plaintiffs”) filed a lawsuit against 7 Defendants Gina Raimondo, U.S. Secretary for Commerce, and National Marine Fisheries Service 8 (collectively, “Fisheries Service” or “Defendants”), alleging three causes of action challenging the 9 Reopening Rule issued by Defendants under the Magnuson-Stevens Fishery Conservation and 10 Management Act (“MSA”). Plaintiffs allege violation of the Endangered Species Act (“ESA”) for 11 failure to reinitiate and complete consultation (count one), violation of the ESA and 12 Administrative Procedure Act (“APA”) for unlawful reliance on the 2012 Biological Opinion 13 (count two), and violation of the MSA and APA for unlawful issuance of the Reopening Rule 14 (count three). Plaintiffs request declaratory relief that the Fisheries Service has violated each of 15 these statutes, and that the Court vacate certain Reopening Rule provisions and order Defendants 16 to complete ESA consultation and issue a new biological opinion within 90 days. On February 26, 17 2024, through the instant motion, Defendants move to dismiss the first two causes of action. ECF 18 14. 19 II. DISCUSSION 20 Defendants move to dismiss the first two causes of action for lack of subject matter 21 jurisdiction due to Plaintiffs’ failure to comply with the ESA’s 60-day notice provision. ECF 14 22 (“Mot.”) at 21. The ESA contains a citizen suit provision that provides a cause of action and 23 mandates that “[n]o action may be commenced . . . prior to sixty days after written notice of the 24 violation has been given to the Secretary, and to any alleged violator of any such provision or 25 regulation.” 16 U.S.C. § 1540(g)(1)-(2). “A failure to strictly comply with the notice requirement 26 acts as an absolute bar to bringing suit under the ESA.” Sw. Ctr. for Biological Diversity v. U.S. 27 Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998). Until recently, the Ninth Circuit has 1 Timber Co., 105 F.4th 1144, 1150 (9th Cir. 2024) (citing Save the Yaak Comm. v. Block, 840 F.2d 2 714, 721 (9th Cir. 1988)). The Ninth Circuit has now clarified that the ESA notice requirement “is 3 a mandatory claims-processing rule, not a jurisdictional predicate.” Id. at 1153.2 4 The parties agree that Plaintiffs did not provide the required notice. Defendants contend 5 that, as a result, the Court must dismiss the ESA claims. Mot. at 21-24. Plaintiffs advance three 6 reasons they did not need to comply with the ESA’s notice provision: (1) where, as here, the ESA 7 claims are substantively MSA claims, only the MSA jurisdictional provisions apply; (2) the ESA’s 8 60-day notice requirement conflicts with the MSA’s 30-day statute of limitations, and, as a result, 9 the MSA’s “more specific” jurisdictional provision controls; and (3) filing ESA claims after 10 initiating a lawsuit pursuant to other statutes does not promote the policy objectives of the MSA. 11 ECF 19 (“Opp.”) at 10-17. The Court addresses each in turn. 12 1. The ESA Claims are Distinct from the MSA Claim 13 Plaintiffs first contend that notice under the ESA is not required here because the substance 14 of the first two causes of action are MSA violations, and therefore the MSA jurisdictional 15 provision occurs. Opp. at 12-14. The Court cannot agree. In determining whether the MSA’s 16 statute of limitation applies, the Court looks to the “essence” of the complaint. Turtle Island 17 Restoration Network v. U.S. Dep’t of Com., 438 F.3d 937, 944 (9th Cir. 2006) (finding that 18 plaintiff’s challenge of the reopening of a swordfish fishery challenged the MSA in substance – 19 despite failing to cite to the MSA – and thus, the MSA’s 30-day statute of limitations applied). In 20 Turtle Island, the Court found that claims brought under other statutes were substantively MSA 21 claims because they were “appropriately characterized as an attack on the regulations reopening 22 the fishery.” Id. at 939; cf. Washington v. Daley, 173 F.3d 1158, 1170 n.16 (9th Cir. 1999) 23 (holding that the ESA’s notice requirement “need not be met” where plaintiff’s claims were 24 brought under the MSA). Here, distinctly, Plaintiffs bring the first two causes of action under the 25
26 2 Cascadia was decided after the parties briefed the instant motion. The Court grants Plaintiffs’ motion for leave to file a notice of supplementary authority as to the decision. ECF 41. Although 27 the ESA notice requirement is no longer considered “jurisdictional,” Cascadia does not change the 1 ESA, challenging the Fisheries Services’ violation of the ESA by failing to complete consultation 2 and relying on the 2012 biological opinion in issuing the Reopening Rule. Turtle Island suggests 3 that Plaintiffs may not avoid the 30-day jurisdictional limit of the MSA where they challenge the 4 regulations promulgated under the MSA. 438 F.3d at 945. However, contrary to Plaintiffs’ 5 contention, Ninth Circuit authority does not hold that a plaintiff may ignore the notice requirement 6 under the ESA simply because the alleged ESA violation involves a rule promulgated under the 7 MSA. See id. at 939. Accordingly, this argument fails. 8 2. Plaintiffs Could Have Complied with the ESA and MSA Jurisdictional 9 Provisions 10 Plaintiffs next contend that the ESA and MSA conflict because Plaintiffs cannot comply 11 with both the ESA 60-day notice requirement and MSA 30-day statute of limitations. The Ninth 12 Circuit has already held that the two statutes’ requirements can coexist. Alliance for the Wild 13 Rockies v. U.S. Dep’t of Agric., 772 F.3d 592, 601-02 (9th Cir. 2014) (“Alliance”). Indeed, “there 14 is nothing in the ESA that remotely suggests that a potential ESA plaintiff must refrain from 15 commencing suit to pursue other non-ESA claims before the 60–day period expires.” Id. at 603. 16 In Alliance, the plaintiff provided notice of its intent to sue under the ESA, filed a complaint 17 alleging non-ESA claims, and after the 60-day notice period expired, amended the complaint to 18 add ESA claims. Id. at 602. The Ninth Circuit held that this complied with the ESA’s 19 unambiguous language that “actions under the ESA may not commence until 60 days after a 20 potential plaintiff has notified the Secretary . . . of a purported ESA violation.” Id. Plaintiffs 21 contend that Alliance is inapplicable here because the 60-day ESA notice requirement conflicts 22 with the 30-day MSA statute of limitations, and the plaintiffs in Alliance did not bring claims 23 under statutes with similarly conflicting provisions. Opp. at 15-16. The Court does not find this 24 persuasive because the Ninth Circuit has laid out a procedure by which a plaintiff can comply with 25 both statutes. See Center for Biological Diversity v. Environmental Protection Agency, 847 F.3d 26 1075, 1088-89, n.16 (9th Cir. 2017) (concluding that Alliance helps address how “two 27 jurisdictional statutes can co-exist” where the plaintiff expressed a similar concern about the ESA 1 F.3d at 603-04). Because Plaintiffs could have followed the procedures proposed in Alliance and 2 || complied with both the 30-day MSA statute of limitations and the 60-day ESA notice requirement, 3 the Court cannot find that the mandatory ESA notice requirement is waived here. 4 3. The MSA’s Policy Objectives 5 Finally, Plaintiffs argue that filing ESA claims after bringing a lawsuit based on other 6 || claims does not promote the policy objectives of the MSA because it would not provide agencies 7 || with “an opportunity for settlement or other resolution of a dispute without litigation.” Opp. at 15 8 (quoting Sw. Ctr. for Biological Diversity, 143 F.3d at 520). Whether a process complies with 9 || policy objectives is a question best left to the legislature. Nevertheless, under the procedure 10 detailed in Alliance, Plaintiffs could have provided notice before suing under the MSA and later 11 amended the complaint, thus giving Defendants at least 60 days to resolve the ESA claims before 12 || litigation was brought under those claims. 13 Although the Court recognizes the tension between the 60-day notice required under the 14 ESA and the 30-day statute of limitations under the MSA, ultimately, Plaintiffs have not pointed 3 15 to any authority showing that the Court should not dismiss their ESA claims where Plaintiffs a 16 || failed to comply with the 60-day ESA notice provision. The Court therefore DISMISSES the first
17 two counts of the complaint. 18 | mm. CONCLUSION 19 For the foregoing reasons, the Court GRANTS the partial motion to dismiss counts one 20 and two. 21 22 IT IS SO ORDERED. 23 || Dated: July 24, 2024 24 Mod | / □
ARACELI MARTINEZ-OLGUIN 26 United States District Judge 27 28