Slip Op. 07-31UNITED STATES COURT OF INTERNATIONAL TRADE____________________________________:SALMON SPAWNING & RECOVERY :ALLIANCE, et al., ::Plaintiffs, :: Before: Judith M. Barzilay, Judgev. : Court No. 06-00191:W. RALPH BASHAM, et al., ::Defendants. :____________________________________:OPINION[Defendants’ motion to dismiss is granted.]Dated: March 6, 2007Heller Ehrmann LLP, (Eric Redman) and (Svend Arnold Brandt-Erichsen) for Plaintiffs SalmonSpawning & 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 forDefendants United States Customs & Border Protection, Dirk Kempthorne, United StatesDepartment of Interior, United States Fish & Wildlife Service, Carlos M. Gutierrez, UnitedStates Department of Commerce, D. Robert Lohn, National Oceanic & AtmosphericAdministration National Marine Fisheries Service, Deborah J. Spero, and H. Dale Hall. BARZILAY, JUDGE: Plaintiffs Salmon Spawning & Recovery Alliance, Native FishSociety, and Clark-Skamania Flyfishers (collectively “Plaintiffs”) have moved for judgment onthe agency record, pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 (2000), etseq., the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 551–706 (2000), and USCIT RuleCourt No. 06-00191 Page 21Defendants 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 ofCommerce (“Commerce”), the heads of the aforementioned agencies, the National Oceanic andAtmospheric Administration, and the National Marine Fisheries Service (“NMFS”). 2To avoid the tiresome refrain “threatened and endangered,” the word “endangered” inthis opinion will be assumed to encompass the meaning of “threatened” unless context suggestsotherwise. 56.1, to challenge Defendants’1 failure to perform ESA-mandated duties in connection with theimportation 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"), 16U.S.C. § 1538, and the APA by allowing the prohibited importation of these salmon and 2) thatCustoms and the FWS have unlawfully failed to consult with the NMFS, as required by section 7of the ESA (“§ 7"), Id. § 1536, to discern whether their non-enforcement of § 9 jeopardizes theendangered salmon. See Compl. ¶¶ 41–46, 48–51. Plaintiffs ask this court 1) to declare thatthese 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 toUSCIT Rule 12(b)(1) or, in the alternative, for failure to state a claim for which relief can begranted pursuant to USCIT Rule 12(b)(5). For the reasons set forth below, Defendants’ motionto dismiss for lack of subject matter jurisdiction is granted.I. BackgroundA. The Endangered Species ActIn 1973, Congress passed the Endangered Species Act and established a legal regimedesigned “to halt and reverse the trend toward species extinction.” Earth Island Inst. v.Court No. 06-00191 Page 33Congress defined “conserve” as “to use and the use of all methods and procedures whichare necessary to bring any endangered species or threatened species to the point at which themeasures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1532(3). 4The ESA delegates the responsibility for determining whether a species is endangered orthreatened 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 ofCommerce does so via the NMFS. Because the Secretary of Commerce and NMFS overseemarine life, they have responsibility for the salmon in this case. This opinion will therefore referonly to Commerce and the NMFS. 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 draftingonward, “[t]he dominant theme pervading all Congressional discussion of the [ESA] was theoverriding need to devote whatever effort and resources were necessary to avoid furtherdiminution 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 departmentsand agencies shall seek to conserve3 endangered species and threatened species and shall utilizetheir 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 isappropriate,4 must promulgate regulations that list species considered “threatened” or“endangered” and that designate these species’ “critical habitat.” Id. § 1533(a). The Secretarymust also “issue such regulations as he deems necessary and advisable to provide for theconservation of such species.” § 1533(d). In conjunction with these efforts, § 7 requires everyfederal agency, “in consultation with and with the assistance of the Secretary,” to “insure that anyaction authorized, funded, or carried out by such agency . . . is not likely to jeopardize thecontinued existence of any endangered species or threatened species or result in the destructionCourt No. 06-00191 Page 45This 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 governmentalinstrumentality or agency . . . , who is alleged to be in violation of any provisionof [the ESA] or regulation issued under the authority thereof . . . .. . . . The district courts shall have jurisdiction . . . to enforce any such provision orregulation . . . .16 U.S.C. § 1540(g)(1). 6This case concerns Chinook salmon from Puget Sound and the lower Columbia River,and Snake River Fall Chinook. or adverse modification of habitat of such species which is determined by the Secretary . . . to becritical.” § 1536(a)(2); accord §
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