Slip Op 07 31 UNITED STATES COURT OF INTERNATIONAL TRADE SALMON SPAWNING RECOVERY ALLIANCE et al Plaintiffs v W RALPH BASHAM et al Defendants Before Judith M Barzilay Judge Court No 06 00191 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 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
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