Notice Period doesn't Cause 9th Circ. to Pause on ESA


The decision by the Ninth Circuit in Alliance for the Wild Rockies v. U.S. Dep't of Agriculture, No. 13-35253 (9th Cir. Nov. 20, 2014), permitting plaintiffs to amend a complaint to add claims under the federal Endangered Species Act after sending a notice of intent to sue and waiting the requisite 60 days, represents a significant shift in the law, as federal courts have prohibited such amendments in the past. Thus, in the past, if a plaintiff wanted to pursue both non-ESA and ESA claims, it would often sit on its non-ESA claims until the passage of the notice period, which meant no temporary restraining order or preliminary injunction motion could be filed for at least 60 days even if there was a clear violation of some other federal statute. As a result of the Ninth Circuit's decision, however, plaintiffs in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington can pursue their non-ESA claims immediately, and amend the complaint to add their ESA claims after the passage of the 60-day notice period.

Like many other federal environmental statutes, the ESA contains a citizen suit provision that permits qualified private parties to file an action in federal court to enjoin certain violations of the ESA. For example, under Section 11 of the ESA, a qualified private party can seek to enjoin any person from taking an endangered species without first obtaining take authority from either the U.S. Fish and Wildlife Service or National Marine Fisheries Service — a violation of ESA Section 9. However, in addition to satisfying federal standing requirements, in order to be deemed a qualified private party by the court, the would-be plaintiff must also comply with a procedural formality established by Congress. Specifically, the party must send the would-be defendant a notice identifying, among other things, the alleged violation of the ESA and the private party's intention to file suit. Under the ESA, this notice must be provided 60 days prior to filing an action. 16 U.S.C. § 1540(g)(2)(A). If a lawsuit is filed prior to the expiration of the 60 days, the court can dismiss the ESA claim(s). As a result, practitioners often take a very cautious approach to the 60-day notice requirement, waiting to commence a suit alleging ESA, as well as non-ESA claims until expiration of the 60-day period. In Alliance for the Wild Rockies v. U.S. Dep't of Agriculture, however, the Ninth Circuit held, addressing the issue for the first time, that the 60-day notice requirement does not mandate such a cautious approach.

The District Court's Decision Dismissing the Suit

The litigation arose out of a challenge to the helicopter hazing program for bison in the Yellowstone Grizzly Bear Recovery Zone. In order to minimize disease transfer between wild bison and cattle in the Greater Yellowstone Area, the National Park Service adopted an Interagency Bison Management Plan. The plan concluded that helicopter hazing operations would not adversely affect the Yellowstone grizzly. Because the Yellowstone grizzly is a threatened species under the ESA, the National Park Service prepared a biological evaluation for the plan, and the FWS concurred in the biological evaluation's determination that hazing activities do not significantly interfere with the normal behavioral patterns of the grizzly bear. A final environmental impact statement was also prepared for the plan pursuant to the National Environmental Policy Act.

Shortly after all necessary approvals for the plan had been obtained, plaintiff Alliance for the Wild Rockies sent the FWS a 60-day notice of intent to sue. Before the expiration of the 60 days, however, plaintiff filed a complaint alleging violations under NEPA and the National Forest Management Act. After the expiration of the 60 days, plaintiff filed an amended complaint adding claims under the ESA. Specifically, plaintiff alleged that the federal agencies failed to comply with the requirements in Section 7 of the ESA, and that the hazing operations would result in "take" of the grizzly bear in violation of Section 9 of the ESA.

After the parties had fully briefed cross-motions for summary judgment, the federal agencies reinitiated and completed consultation with the FWS regarding the plan. The district court granted the federal defendants' motion for summary judgment and denied plaintiff's, finding that plaintiff lacked Article III standing to pursue its claims that the ESA claims had to be dismissed because plaintiff failed to comply with the 60-day notice requirement, that plaintiff's Section 7 claim was moot because the defendants had reinitiated and completed a new round of consultation and that plaintiff's Section 9 claim failed because there was "no evidence in the record" that the hazing resulted in "take." The district court also found in favor of the defendants with respect to the NEPA and NFMA claims.

The Ninth Circuit's Partial Reversal

On appeal, after finding that plaintiff had standing to pursue its claims, the Ninth Circuit turned to the 60-day notice issue. The Ninth Circuit summarized the issue as follows: "The question here is whether Alliance complied with the ESA's 60-day notice requirement when it gave notice of its intent to sue under the ESA but then filed a complaint alleging non-ESA claims, later amending the complaint to add ESA claims after the 60-day notice period had expired." Noting that it had never squarely addressed the issue, the Ninth Circuit analyzed the language in the statute, the legislative purpose of the notice requirement and the practical implications of its decision.

The Ninth Circuit started its analysis by considering the plain language of the statute. Section 11(g)(2)(A) of the ESA states: "No action may be commenced under subparagraph (1)(A) of this section ... prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator ..." The Ninth Circuit found that this language "makes clear that the notice requirement pertains only to actions commenced under § 11(g)(1)(A)." The Ninth Circuit also noted that the defendants could not "identify any provision in the statute which suggests that the ESA's notice requirement should be interpreted to preclude filing of a complaint alleging non-ESA claims before the 60-day notice period expired."

The Ninth Circuit then turned its analysis to the legislative purpose underlying the notice requirement. Analogizing the ESA notice provision to the notice provision in the federal Clean Air Act, the Ninth Circuit found that the purpose for the notice requirement is to provide "federal agencies with an opportunity to ‘take responsibility' for enforcing the ESA and to correct any violation short of litigation. ... [And] there is nothing in the ESA that remotely suggests that a potential ESA plaintiff must refrain from commencing suit to pursue other non-ESA claims before the 60-day period expires."

Finally, the Ninth Circuit considered the practical implications of precluding amendments to allege ESA claims. The Ninth Circuit explained that while the ESA contains a prefiling notice provision, Congress has "thus far declined to include such a prefiling requirement in NEPA and NFMA." But if courts did not permit a plaintiff to amend to allege ESA claims, they "would be imposing a de facto notice requirement for cases that also potentially raise ESA issues where Congress has explicitly declined to do so." The Ninth Circuit found such practical implications were simply unacceptable.

Accordingly, after finding support in other decisions dealing with analogous prefiling requirements in other laws, the Ninth Circuit found that the plaintiff had complied with the notice requirement by amending its complaint to add the ESA claims after the expiration of the 60-day period.

Notably, in a footnote, the Ninth Circuit distinguished the facts before it from the facts in Proie v. National Marine Fisheries Service, No. C11-5955, 2012 U.S. Dist. LEXIS 60779 (W.D. Wash. May 1, 2012), a case in which a district court refused to allow a plaintiff to amend a complaint to add ESA claims. The Ninth Circuit stated that Proie was distinguishable because, "[u]nlike in Proie, Alliance's original complaint did not indirectly raise an ESA claim, but instead alleged NEPA and NFMA claims distinct from ESA violations." In light of this footnote, the cautious approach may still be the best approach when the non-ESA claims arguably raise the ESA claim indirectly.

A Hollow Victory for Plaintiff

While plaintiff won the battle over notice, it lost the war in every other respect, as the Ninth Circuit found that by reinitiating and completing consultation the federal defendants had mooted plaintiff's Section 7 challenge, and that even when the evidence is read in the light most favorable to plaintiff there was inadequate evidence of a "take" in violation of Section 9. The Ninth Circuit also affirmed the district court's decision on plaintiff's NEPA and NFMA claims.

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