Salmon Spawning & Recovery Alliance v. Basham

Slip Op. 07-31

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________

:

SALMON SPAWNING & RECOVERY :

ALLIANCE, et al., :

:

Plaintiffs, :

: Before: Judith M. Barzilay, Judge

v. : Court No. 06-00191

:

W. RALPH BASHAM, et al., :

:

Defendants. :

____________________________________:

OPINION

[Defendants’ motion to dismiss is granted.]

Dated: March 6, 2007

Heller Ehrmann LLP, (Eric Redman) and (Svend Arnold Brandt-Erichsen) for Plaintiffs Salmon

Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers.

Peter D. Keisler, Assistant Attorney General; (Jeanne E. Davidson), Director; (Stephen C.

Tosini), Commercial Litigation Branch, Civil Division, United States Department of Justice for

Defendants United States Customs & Border Protection, Dirk Kempthorne, United States

Department of Interior, United States Fish & Wildlife Service, Carlos M. Gutierrez, United

States Department of Commerce, D. Robert Lohn, National Oceanic & Atmospheric

Administration National Marine Fisheries Service, Deborah J. Spero, and H. Dale Hall.

BARZILAY, JUDGE: Plaintiffs Salmon Spawning & Recovery Alliance, Native Fish

Society, and Clark-Skamania Flyfishers (collectively “Plaintiffs”) have moved for judgment on

the agency record, pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 (2000), et

seq., the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 551–706 (2000), and USCIT Rule

Court No. 06-00191 Page 2

56.1, to challenge Defendants’1 failure to perform ESA-mandated duties in connection with the

importation of threatened and endangered2 salmon from Canada into the United States.

Specifically, Plaintiffs aver 1) that Defendants have violated section 9 of the ESA (Ҥ 9"), 16

U.S.C. § 1538, and the APA by allowing the prohibited importation of these salmon and 2) that

Customs and the FWS have unlawfully failed to consult with the NMFS, as required by section 7

of the ESA (“§ 7"), Id. § 1536, to discern whether their non-enforcement of § 9 jeopardizes the

endangered salmon. See Compl. ¶¶ 41–46, 48–51. Plaintiffs ask this court 1) to declare that

these actions violate the ESA and APA, 2) to enter injunctive relief to enforce Defendants’

compliance with the law, and 3) to award Plaintiffs costs for this action. See Compl. 12.

Defendants have moved to dismiss the case for lack of subject matter jurisdiction pursuant to

USCIT Rule 12(b)(1) or, in the alternative, for failure to state a claim for which relief can be

granted pursuant to USCIT Rule 12(b)(5). For the reasons set forth below, Defendants’ motion

to dismiss for lack of subject matter jurisdiction is granted.

I. Background

A. The Endangered Species Act

In 1973, Congress passed the Endangered Species Act and established a legal regime

designed “to halt and reverse the trend toward species extinction.” Earth Island Inst. v.

1

Defendants include U.S. Customs and Border Protection (“Customs”), the U.S.

Department of the Interior, the U.S. Fish & Wildlife Service (“FWS”), the U.S. Department of

Commerce (“Commerce”), the heads of the aforementioned agencies, the National Oceanic and

Atmospheric Administration, and the National Marine Fisheries Service (“NMFS”).

2

To avoid the tiresome refrain “threatened and endangered,” the word “endangered” in

this opinion will be assumed to encompass the meaning of “threatened” unless context suggests

otherwise.

Court No. 06-00191 Page 3

Christopher, 19 CIT 1461, 1480, 913 F. Supp. 559, 576 (1995) (quoting TVA v. Hill, 437 U.S.

153, 184–85 (1978)), appeal dismissed, 86 F.3d 1178 (Fed. Cir. 1996). From the bill’s drafting

onward, “[t]he dominant theme pervading all Congressional discussion of the [ESA] was the

overriding need to devote whatever effort and resources were necessary to avoid further

diminution of national and worldwide wildlife resources.” TVA, 437 U.S. at 177 (quotations &

citation omitted). It became the “declared . . . policy of Congress that all Federal departments

and agencies shall seek to conserve3 endangered species and threatened species and shall utilize

their authorities in furtherance of” this purpose. 16 U.S.C. § 1531(c).

Under section 4 of the Act, the Secretary of Commerce or the Interior, whoever is

appropriate,4 must promulgate regulations that list species considered “threatened” or

“endangered” and that designate these species’ “critical habitat.” Id. § 1533(a). The Secretary

must also “issue such regulations as he deems necessary and advisable to provide for the

conservation of such species.” § 1533(d). In conjunction with these efforts, § 7 requires every

federal agency, “in consultation with and with the assistance of the Secretary,” to “insure that any

action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the

continued existence of any endangered species or threatened species or result in the destruction

3

Congress defined “conserve” as “to use and the use of all methods and procedures which

are necessary to bring any endangered species or threatened species to the point at which the

measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1532(3).

4

The ESA delegates the responsibility for determining whether a species is endangered or

threatened to the Secretaries of the Interior and Commerce. See 16 U.S.C. §§ 1532(15), 1533(a).

The Secretary of the Interior administers the ESA through the FWS, while the Secretary of

Commerce does so via the NMFS. Because the Secretary of Commerce and NMFS oversee

marine life, they have responsibility for the salmon in this case. This opinion will therefore refer

only to Commerce and the NMFS.

Court No. 06-00191 Page 4

or adverse modification of habitat of such species which is determined by the Secretary . . . to be

critical.” § 1536(a)(2); accord § 1536(a)(1); 50 C.F.R. § 402.14(a). This provision in effect

“‘prohibit[s] [a] federal agency from taking action which does jeopardize the status of

endangered species.’” TVA, 437 U.S. at 179 (quoting Endangered Species Act of 1973: Hearing

on S. 1592 and S. 1983 Before the Subcomm. on Env’t of the Comm. on Commerce, 93d Cong.

68 (1973)) (second brackets in original).

In addition, the ESA employs other mechanisms to protect endangered species. For

example, § 9 renders it “unlawful for any person subject to the jurisdiction of the United States to

– (A) import any [endangered] species into . . . the United States,” § 1538(a)(1), and section 11

of the ESA contains the citizen suit provision under which Plaintiffs have brought their case, see

id. § 1540(g).5

B. Salmon Under the ESA

In response to more than a century of over-fishing and environmental abuse, the NMFS

has listed twenty-six populations of West Coast salmon and steelhead as threatened or

endangered.6 50 C.F.R. §§ 223.102 (listing threatened salmon species), 224.101 (listing

5

This portion of the ESA’s citizen suit provision declares in relevant part that:

[A]ny person may commence a civil suit on his own behalf--

(A) to enjoin any person, including the United States and any other governmental

instrumentality or agency . . . , who is alleged to be in violation of any provision

of [the ESA] or regulation issued under the authority thereof . . . .

....

The district courts shall have jurisdiction . . . to enforce any such provision or

regulation . . . .

16 U.S.C. § 1540(g)(1).

6

This case concerns Chinook salmon from Puget Sound and the lower Columbia River,

and Snake River Fall Chinook.

Court No. 06-00191 Page 5

endangered salmon species); see also id. § 223.203(a) (“The prohibitions of section 9(a)(1) of the

ESA (16 U.S.C. [§] 1538(a)(1)) relating to endangered species apply to anadromous fish with an

intact adipose fin that are part of the threatened species of salmonids listed in [50 C.F.R.] §

223.102(a).”); Endangered and Threatened Species; Final Rule Governing Take of 14

Threatened Salmon and Steelhead Evolutionarily Significant Units (ESUs), 65 Fed. Reg. 42,422,

42,423 (Dep’t Commerce July 10, 2000) (finding by NMFS that it is “necessary and advisable”

to ban imports of threatened salmon); Policy on Applying the Definition of Species Under the

Endangered Species Act to Pacific Salmon, 56 Fed. Reg. 58,612 (Dep’t Commerce Nov. 20,

1991). Because of the dire circumstances facing many species, the NMFS has extended ESA

protection even to certain hatchery-raised salmon to help the populations survive. See

§ 223.203(a); Policy on the Consideration of Hatchery-Origin Fish in Endangered Species Act

Listing Determinations for Pacific Salmon and Steelhead, 70 Fed. Reg. 37,204-01 (Dep’t

Commerce June 28, 2005). Customs has likewise adopted regulations that comply with the

NMFS’ findings. 19 C.F.R. § 12.26(g)(1).7

7

The regulation in relevant part states that:

(1) All import shipments of fish and wildlife subject to the regulations or permit

requirements of the U.S. Fish and Wildlife Service, published pursuant to the

Endangered Species Act of 1973, 16 U.S.C. 1531, or other statutory authority,

shall be subject to examination or inspection by that agency's officer serving the

port of entry, for determination as to permissible release or such other disposition

as he may direct. Customs officers performing examinations of such fish and

wildlife in accordance with regulations of the U.S. Fish and Wildlife Service in 50

CFR part 10 and parts 13 through 17, shall release shipments only upon

submission by the importer of evidence sufficient to establish compliance with

those regulations, any applicable permit requirements, and compliance with

applicable identification and package or container marking requirements as

specified by 50 CFR 17.6(a) and 17.9. In case of doubt as to whether fish, birds,

or other wildlife belong to prohibited or endangered species or subspecies or

whether an entry permit is required, or in case of suspicion on the part of officers

Court No. 06-00191 Page 6

Some salmon species listed as endangered swim north from the United States into

Canadian waters, where often many are killed for sport or commercial purposes before they can

return to U.S. rivers to spawn, i.e., before they can reproduce for the only time in their lives.

Commercial shippers8 and American sport fishermen often import these dead salmon into the

United States. In fact, in Canada an entire industry markets to U.S. sport fishermen the

opportunity to hunt these protected salmon. See Pls.’ Mot. J. A.R. Ex. 1, 2–3 (“Pls. Mot.”).

C. The Case at Bar

In response to Defendants’ failure to enforce the importation prohibition on these

endangered salmon, pursuant to the ESA’s citizen suit provision, Plaintiffs compiled documents

detailing the killing of the endangered salmon in Canadian waters and their subsequent

importation, and submitted them to Defendants. See Pls. Mot. Ex. 1. Defendants responded with

a one-page letter, which stated that Customs would forward the documents to the NMFS. See

Pls. Mot. Ex. 2. Plaintiffs then filed suit in the Western District of Washington pursuant to

§ 1540(g)(1). That court held that it lacked subject matter jurisdiction over the case and

of the [sic] Customs that the species sought to be entered are prohibited or

endangered species or subspecies imported under other names or descriptions, the

importation shall be refused Customs release, and the importer shall be

responsible for concluding arrangements acceptable to the regional director or

other agent of the U.S. Fish and Wildlife Service for proper handling, custody,

and care, at the importer's expense and risk, of the unreleased fish, birds, or other

wildlife. . . .

19 C.F.R. § 12.26(g)(1).

8

The ESA prohibits commercial use of threatened and endangered species. 16 U.S.C.

§ 1538(a)(1)(E)–(F).

Court No. 06-00191 Page 7

transferred the complaint to the Court of International Trade. See Salmon Spawning & Recovery

Alliance v. Spero, No. C05-1878Z, 2006 WL 1207909 (W.D. Wash. May 3, 2006); see also 28

U.S.C. § 1631 (2000) (providing for transfer for want of jurisdiction).

II. Defendants’ Motion to Dismiss

Subject matter jurisdiction constitutes a “threshold matter” in all cases, such that without

it, a case must be dismissed without proceeding to the merits. See Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998). “The burden of establishing jurisdiction lies with the party

seeking to invoke th[e] Court’s jurisdiction.” Bhullar v. United States, 27 CIT 532, 535, 259 F.

Supp. 2d 1332, 1334 (2003) (citing Old Republic Ins. Co. v. United States, 14 CIT 377, 379, 741

F. Supp. 1570, 1573 (1990) (citing McNutt v. GM Acceptance Corp., 298 U.S. 178, 189 (1936))),

aff'd, 93 F. App’x 218 (Fed. Cir. 2004).

A. Standard of Review

An analysis of whether a Court has subject matter jurisdiction “involves both

constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”

Bennett v. Spear, 520 U.S. 154, 161 (1997) (quotations & citation omitted). In its constitutional

aspect, a plaintiff must satisfy the “‘case’ or ‘controversy’ requirement of Article III,” which

requires that the “plaintiff . . . demonstrate [1] that he has suffered [an] ‘injury in fact’ [2] . . .

‘fairly traceable’ to the actions of the defendant, and [3] that the injury will likely be redressed by

a favorable decision.”9 Id. (citations omitted). When examining these factors, “general factual

allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to

9

Because the court finds that Plaintiffs do not meet the ‘case’ or ‘controversy’

requirement, it need not discuss other constitutional limitations on subject matter jurisdiction.

Court No. 06-00191 Page 8

dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to

support the claim.’” Earth Island Inst., 19 CIT at 1465, 913 F. Supp. at 564 (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “[T]he material allegations of a complaint are

taken as admitted and are to be liberally construed in favor of the plaintiff(s).” Humane Soc’y v.

Brown, 19 CIT 1104, 1104, 901 F. Supp. 338, 340 (1995). However,

[w]hen the suit is one challenging the legality of government action or inaction,

the nature and extent of facts that must be averred (at the summary judgment

stage) . . . to establish standing depends considerably upon whether the plaintiff is

himself an object of the action (or foregone action) at issue. . . . When . . . a

plaintiff’s asserted injury arises from the government’s allegedly unlawful

regulation (or lack of regulation) of someone else, much more is needed.”

Lujan, 504 U.S. at 561–62.

B. Discussion

Assuming arguendo that Plaintiffs have suffered an injury in-fact fairly traceable to

Defendants, the court will proceed to examine whether either of Plaintiffs’ § 9 or § 7 claims may

be redressed by a favorable decision in this Court.

1. Section 9

The discretionary nature of Customs’ exercise of its enforcement powers renders this

Court incapable of redressing Plaintiffs’ § 9 claim. While at first glance § 1540(g)(1)10 may grant

10

[A]ny person may commence a civil suit on his own behalf–

(A) to enjoin any person, including the United States and any other governmental

instrumentality or agency (to the extent permitted by the eleventh amendment to

the Constitution), who is alleged to be in violation of any provision of this chapter

or regulation issued under the authority thereof; or (B) to compel the Secretary to

apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth

in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with

respect to the taking of any resident endangered species or threatened species

within any State; or (C) against the Secretary where there is alleged a failure of the

Court No. 06-00191 Page 9

Plaintiffs a cause of action against Customs’ failure to enforce the § 9 ban on the importation of

endangered salmon, which already is codified in 50 C.F.R. § 223.203(a) and 19 C.F.R.

§ 12.26(g), the crux of the inquiry is found in the words of the statute “which is not discretionary

with the Secretary.” Case law and constitutional concerns place Plaintiffs’ claims squarely in the

category of discretionary acts and duties. Therefore, this court may not require such actions on

the part of the NMFS or the Bureau of Customs.11

In its role as an administrative agency, Customs has “plenary power to safeguard the

United States borders, which includes the power to inspect any person or thing that presents itself

at a border seeking entrance.” United States v. 1903 Obscene Magazines, 907 F.2d 1338, 1341

(2d Cir. 1990). 19 U.S.C. § 1581(a) (2000) establishes Customs officers' authority to search

individuals and items crossing the border:

Any officer of the customs [sic] may at any time go on board of any vessel or

vehicle at any place in the United States or within the customs waters . . . or at any

other authorized place . . . and examine the manifest and other documents and

Secretary to perform any act or duty under section 1533 of this title which is not

discretionary with the Secretary.

The district courts shall have jurisdiction, without regard to the amount in

controversy or the citizenship of the parties, to enforce any such provision or

regulation, or to order the Secretary to perform such act or duty, as the case may

be. In any civil suit commenced under subparagraph (B) the district court shall

compel the Secretary to apply the prohibition sought if the court finds that the

allegation that an emergency exists is supported by substantial evidence.

16 U.S.C. § 1540(g)(1) (emphasis added).

11

At oral argument, Plaintiffs’ counsel seemed to abandon the claim that Defendants were

violating § 9 and stated that, for now, an order from this court remanding to the agencies for a § 7

consultation would satisfy Plaintiffs. See Tr. 25–26. However, as Defendants’ counsel noted, if

Defendants are given complete discretion to enforce, the results of a § 7 consultation would lead

nowhere. See Tr. 33. More importantly, the court finds that there is no agency action that would

trigger the consultation requirement. See infra.

Court No. 06-00191 Page 10

papers and examine, inspect, and search the vessel or vehicle and every part

thereof and any person, trunk, package, or cargo on board, and to this end may

hail and stop such vessel or vehicle, and use all necessary force to compel

compliance.

19 U.S.C. § 1581(a) (emphasis added). As the statute reveals, the exercise of Customs’ police

powers lie solely within the agency’s discretion. The statutory language repeatedly employs the

word "may," which reflects the discretionary nature of law enforcement, a governmental function

traditionally left to the Executive branch. Accord Mid-S. Holding Co. v. United States, 225 F.3d

1201, 1205 (2000) (noting that § 1581 "leaves the Customs Service a great deal of discretion . . .

in deciding which vessels to board and search"); see also Autery v. United States, 992 F.2d 1523,

1529 (11th Cir.1993) (observing that unspecific statutory or regulatory guideline implies that

discretion was intended). The law does not require Customs officials to stop and examine every

vehicle, vessel, individual, or piece of merchandise that passes into the United States. See

Carroll v. United States, 267 U.S. 132, 154 (1925) ("Travelers may be so stopped in crossing an

international boundary because of national self-protection reasonably requiring one entering the

country to identify himself as entitled to come in, and his belongings as effects which may be

lawfully brought in.") (emphasis added); cf. Alexander v. United States, 362 F.2d 379, 381–82

(9th Cir. 1966) (discussing routine occurrence of Customs officials not conducting search at

border). In fact, to do so would prove absurd. A mandatory full and thorough search of all

vehicles and individuals entering the United States not only would exhaust Customs’ limited

resources, but would bring international travel, trade, and commerce to a virtual halt.

The Supreme Court has long held that “an agency’s decision not to prosecute or enforce,

whether through civil or criminal process, is a decision generally committed to an agency’s

absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985); accord Sierra Club v.

Court No. 06-00191 Page 11

Whitman, 268 F.3d 898, 902, 903 (9th Cir. 2001); Strahan v. Linnon, 967 F. Supp. 581, 604 (D.

Mass. 1997), aff’d, 187 F.3d 623 (1st Cir. 1998); see also Lujan, 504 U.S. at 568 (“[S]uits

challenging, not specifically identifiable Government violations of law, but the particular

programs agencies establish to carry out their legal obligations . . . [are] . . . rarely if ever

appropriate for federal-court adjudication.’”) (quoting Allen v. Wright, 468 U.S. 737, 759–60

(1984)) (first ellipses & second brackets in original); cf. Hinck v. United States, 446 F.3d 1307,

1315 (Fed. Cir. 2006). These types of executive government action are “general[ly] unsuitab[le]

for judicial review,” since “an agency decision not to enforce often involves a complicated

balancing of a number of factors which are peculiarly within its expertise.” Heckler, 470 U.S. at

831; accord Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mutual Auto. Ins. Co., 463

U.S. 29, 42 (1983); Sierra Club, 268 F.3d at 903; Dubois v. Thomas, 820 F.2d 943, 948 (8th Cir.

1987) (“Only if the Administrator has discretion to allocate its own resources can a rational

enforcement approach be achieved.”); see Town of Castle Rock v. Gonzales, 545 U.S. 748, 760

(2005); Lujan, 504 U.S. at 577; cf. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004)

(“[T]he only agency action that can be compelled under the APA is action legally required.”);

Hinck, 446 F.3d at 1315. While exceptions to this general rule exist, the ESA “do[es] not

contain the detailed language necessary to remove the enforcement decision [of Customs] from

absolute prosecutorial discretion.” Strahan, 967 F. Supp. at 605 n.31.

Furthermore, if the court were to command Customs to enforce § 9, it would be unclear

what legal standards the court could employ to dictate or assess its compliance. See Norton, 542

U.S. at 63–64; Heckler, 470 U.S. at 830 (noting that APA review of agency non-enforcement

actions not available when “there is no law to apply”) (quotations & citations omitted); Greater

Court No. 06-00191 Page 12

LA Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353, 1361 (9th Cir. 1987). “[E]ven where

Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so

that a court would have no meaningful standard against which to judge the agency’s exercise of

discretion.” Heckler, 470 U.S. at 830; accord Citizens to Pres. Overton Park v. Volpe, 401 U.S.

402, 410–11 (1971); Greater LA Council on Deafness, Inc., 827 F.2d at 1361; Strahan, 967 F.

Supp. at 605 n.31; Friedman v. Kantor, 21 CIT 901, 910, 977 F. Supp. 1242, 1250 (1997),

appeal dismissed, 155 F.3d 570 (Fed. Cir. 1998), aff’d, 156 F.3d 1358 (Fed. Cir. 1998); cf.

Holder v. Hall, 512 U.S. 874, 883–84 (1994). Plaintiffs argue that 19 C.F.R. § 12.26(g)(1)

embodies the standard. Pls.’ Reply Br. 9 (“Under these regulations [19 C.F.R. § 12.26(g)(1), 50

C.F.R. §§ 17.31, 223.203(a)], Customs or FWS must check for compliance every shipment of

threatened and endangered wildlife”) (citing 19 C.F.R. § 12.26(g)(1)). However, the language of

that regulation indicates clearly the discretionary nature of the supposed obligation.12 The

Court’s inability to review Custom’s failure to enforce § 9 prevents Plaintiffs from finding

redress for their grievances in this Court. The court therefore must dismiss Plaintiffs’ § 9 claim

for lack of subject matter jurisdiction.

2. Section 7

As an alternate route to obtaining remedy for their injuries, Plaintiffs wish the court to

order Customs to carry out the mandate of § 7 and confer with the NMFS to ensure that Customs

implements § 9. Section 7 in relevant part states that

12

Section 12.26(g)(1) states that “[a]ll import shipments of fish and wildlife . . . shall be

subject to examination or inspection” by Customs. 19 C.F.R. § 12.26(g)(1) (emphasis added). In

other words, Customs has the power to inspect the imports if it so desires.

Court No. 06-00191 Page 13

[e]ach Federal agency shall, in consultation with and with the assistance of the

Secretary [of Commerce], insure that any action authorized, funded, or carried

out by such agency (hereinafter in this section referred to as an "agency action") is

not likely to jeopardize the continued existence of any endangered species or

threatened species or result in the destruction or adverse modification of habitat of

such species . . . .

§ 1536(a)(2) (emphasis added). As other Courts have highlighted, the use of affirmative

wording, such as “‘authorized, funded, or carried out,’” to delineate agency behavior subject to

the § 7 requirements “stands in marked contrast to other sections of the ESA, which explicitly

refer to an agency’s failure to act.” W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th

Cir. 2006) (quoting § 1536(a)(2)); see, e.g., § 1540(g)(1)(C) (permitting suits against Secretary of

Commerce to remedy his failure to act). This distinction suggests that Congress intended § 7 to

apply only to affirmative agency actions and not to those circumstances in which agencies do not

exercise their powers. See W. Watersheds Project, 468 F.3d at 1108; Defenders of Wildlife v.

EPA, 420 F.3d 946, 967 (9th Cir. 2005) (“[S]ection 7(a)(2) specifies that agencies must when

acting affirmatively refrain from jeopardizing listed species . . . .”), reh’g denied, 450 F.3d 394

(9th Cir. 2006), cert. granted sub nom. Nat’l Ass'n of Home Builders v. Defenders of Wildlife,

127 S. Ct. 852 (2007); EPA v. Defenders of Wildlife, 127 S. Ct. 853 (2007); see also id. at 962

(“The two critical factors triggering this [§ 7] obligation are (1) that the ‘action’ be . . . an action

‘authorized, funded or carried out’ by the agency; and (2) that there is . . . a direct or indirect

effect ‘likely to jeopardize the continued existence of any endangered species or threatened

species or result in the destruction or adverse modification of [critical habitat].’”) (quoting

§ 1536(a)(2)) (last brackets in original); cf. Envtl. Protection Info. Ctr. v. Simpson Timber Co.,

255 F.3d 1073, 1075 (9th Cir. 2001); TVA, 437 U.S. at 179. By limiting the provision’s

application to affirmative agency actions, this restriction on § 7 fits seamlessly with Congress’

Court No. 06-00191 Page 14

intent that administrative agencies employ their authority to protect endangered species and their

habitats without expanding the scope of the agencies’ powers. The agency behavior that

Plaintiffs cite as the catalyst for triggering Customs’ § 7 obligations, however, is failure to

enforce § 9.13 Because non-enforcement constitutes a failure to act, rather than an affirmative

action, § 7 cannot provide the remedy that Plaintiffs seek. Plaintiffs’ § 7 claim therefore fails to

meet the ‘case’ or ‘controversy’ requirement of Article III and so is dismissed for lack of subject

matter jurisdiction.

III. Conclusion

When Congress passed the Endangered Species Act, it recognized the incalculable value

of the species that modern civilization has pushed toward extinction. However, in enacting the

ESA, Congress was bound by – and indeed sought to uphold – the delicate and vital balance of

powers envisioned by the Constitution. The design of the ESA necessarily reflects these

boundaries and limits the means by which the government may act to protect endangered and

threatened species. While there is no doubt that all involved parties wish for the survival of the

13

During oral argument, Plaintiffs cited to Pacific Rivers Council v. Thomas, 30 F.3d

1050 (9th Cir. 1994), to buttress its contention that the court may regulate Customs’ behavior in

this case because Customs retains discretion to modify its policies. See Tr. 22–23. However, as

the Court of Appeals for the Ninth Circuit noted, the Land and Resource Management Plans

(“LRMPs”) implemented by the United States Forest Service at issue in Pacific Rivers Council

“are comprehensive management plans governing a multitude of individual projects.” Pac.

Rivers Council, 30 F.3d at 1053. As such, LRMPs constitute “ongoing agency action[s]” by the

Forest Service, unlike Customs’ alleged failure to enforce the importation prohibitions on

endangered salmon. Id. The same factors distinguish the present case from Environmental

Protection Information Center v. Simpson Timber Company. See, e.g., 255 F.3d at 1079; see Tr.

24–25.

Court No. 06-00191 Page 15

Chinook salmon and Snake River Fall Chinook, the solution does not reside in this Court.

Because the Court lacks subject matter jurisdiction, Defendants’ motion to dismiss must be, and

hereby is, granted.14

March 6, 2007 /s/ Judith M. Barzilay

Dated:_____________________ ______________________

New York, NY Judith M. Barzilay

14

Because the Court lacks jurisdiction to entertain this matter, Plaintiffs’ motion for

reconsideration of the court’s November 21, 2006 denial of Plaintiffs’ motion to supplement the

agency record is denied.

Slip Op. 07-31

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________

:

SALMON SPAWNING & RECOVERY :

ALLIANCE, et al., :

:

Plaintiffs, :

: Before: Judith M. Barzilay, Judge

v. : Court No. 06-00191

:

W. RALPH BASHAM, et al., :

:

Defendants. :

____________________________________:

JUDGMENT ORDER

Upon reading Plaintiffs’ motion for judgment on the agency record and Defendants’

motion to dismiss and the parties’ responses and replies thereto, and upon due deliberation, it is

hereby

ORDERED that Plaintiffs’ motion for judgment on the agency record is DENIED; and it

is further

ORDERED that Defendants’ motion to dismiss is GRANTED.

March 6, 2007 /s/ Judith M. Barzilay

Dated:_________________________ _____________________________

New York, NY Judith M. Barzilay, Judge