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Salmon Spawning & Recovery Alliance v. U.S. Customs & Border Protection

Citation: 38 ELR 20304
No. No. 2007-144, (Fed. Cir., 12/18/2008) Revised opinion

The Federal Circuit held that conservation groups lack standing to pursue their Endangered Species Act (ESA) §9 claim against various federal agencies and officials for failing to enforce a ban on importing endangered and threatened fish but that they may have standing to challenge the agencies' failure to consult with National Oceanic and Atmospheric Administration-Fisheries under ESA §7 before allowing the importation. To the extent that the groups brought a cause of action alleging that defendants violated ESA §9 by allowing the importation of ESA-listed salmon, the Court of International Trade properly dismissed the claim for lack of subject matter jurisdiction. An agency's decision not to undertake enforcement actions is "presumptively unreviewable" under the APA. But the groups have sufficiently alleged the elements of standing to pursue their claim that the agencies violated the consultation requirements of ESA §7(a)(2). Because consultation could require the defendants to more actively enforce the import ban, consultation could protect the groups' interests in the survival of the ESA-listed salmon. It is precisely this interest that the consultation procedure was designed to protect. The court therefore remanded the case to the Court of International Trade to determine whether the §7 claim falls within its exclusive jurisdiction.

[A prior decision in this litigation can be found at 38 ELR 20175.]