Animal Advocates Lose on a ‘Harsh’ Technicality

     (CN) – A federal judge tossed an animal-rights group’s lawsuit challenging the government’s refusal to protect 39 species, acknowledging that his dismissal on purely technical grounds “may seem harsh.”
     Friends of Animals petitioned the U.S. Fish and Wildlife Service from October 2010 to March 2012 to protect 39 species: 10 species of sturgeon, including the Baltic and Bastard varieties, 11 tarantula species, 15 species of bats, including the greater monkey-faced bat and the Negros naked-backed fruit bat, along with the Ridgeway hawk, the Flores hawk and the Virgin Islands coqui (a type of frog).
     The Connecticut-based group claimed that years after its petitions were submitted, the Fish and Wildlife Service had not issued a 90-day finding for any of the 39 species, as required by the Endangered Species Act.
     The nonprofit notified the agency last April that it intended to sue. A month later, the service found that protection may be warranted for the sturgeon species but took no further action.
     Friends of Animals followed through with a lawsuit last October that challenged the Fish and Wildlife Service’s failure to issue 12-month findings.
     The agency moved to dismiss, claiming the group lacked standing to sue because it didn’t suffer any injuries. It also argued that the nonprofit’s 60-day notice letter was flawed.
     U.S. District Judge John D. Bates in Washington, D.C., dismissed the group’s complaint Monday for “failure to provide adequate notice of a statutory violation before bringing suit.”
     He found that the Endangered Species Act’s 60-day notice requirement is mandatory for filing suit under the law, and that strict compliance with notice requirements has been “non-controversial” since the Supreme Court’s 1989 decision in Hallstrom v. Tilamook County.
     In that case, the justices held that “compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit.”
     Bates said Friends of Animals erred by challenging only the agency’s failure to issue 12-month findings on its petitions – deadlines the service hadn’t violated yet when the group notified the government that it intended to sue on Aug. 16, 2013.
     “[D]ue to its failure to issue any 90-day findings, FWS was not yet in violation of any of the 12-month deadlines,” Bates wrote. “The reason is simple: a duty to issue a 12-month finding is only triggered by a positive 90-day finding.” (Emphasis in original.)
     He added: “Put another way, before any 90-day findings have been issued, FWS is incapable of violating any of its 12-month deadlines. Had all thirty-nine 90-day findings turned out to be negative, no 12-month findings would have ever been due.”
     Because the agency had no way of knowing if it would ever violate the Endangered Species Act’s 12-month deadline, it had no chance to comply with the statute and avoid the lawsuit, Bates said.
     He noted that the agency ultimately violated the 12-month deadline when it issued positive 90-day findings for every petition more than a year after the statutory deadline.
     Though “dismissal on this highly technical basis may seem harsh,” he wrote, he said district courts do not have the discretion to disregard the strict 60-day notice provision.
     However, Bates bypassed the “difficult question of whether such a dismissal is properly characterized in jurisdictional terms or, instead, as a failure to state a claim.”
     “[T]he issue is purely academic in this case: under Hallstrom, dismissal is mandatory, however characterized,” he wrote.
     The Fish and Wildlife Service declined to comment on the case Wednesday morning.

%d bloggers like this: