Challenge to Emergency Drought Salinity Barrier Thrown Out Due to Lack of Proper Notice

On September 14, 2015, the U.S. District Court for the Eastern District of California granted the state and federal defendants’ motion to dismiss for lack of subject matter jurisdiction.  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884 (pdf). Plaintiff CESAR claimed that the construction and operation of an emergency drought salinity barrier (Project) in the Sacramento-San Joaquin River Delta—which is designated as critical habitat for the threatened delta smelt (Hypomesus transpacificus)—violates the section 9 take prohibition and the section 7 consultation requirement of the Endangered Species Act (ESA).  CESAR filed its action against the California Department of Water Resources and the U.S. Fish and Wildlife Service (Service); its prior motion for a temporary restraining order on the Project was denied (see our prior blog post dated June 24, 2015 for additional background on the Project).  In addition to seeking declaratory and injunctive relief, CESAR sought to require the Service to reinitiate consultation under the ESA.

The defendants asserted in their motion to dismiss that the court did not have jurisdiction over the case because CESAR did not comply with the ESA’s sixty-day notice requirement.  The ESA explicitly requires that a written sixty-day notice be provided to the Secretary (here, the Secretary of the Interior, due to the delta smelt’s listing by the Service) prior to commencing litigation.  CESAR only produced evidence that its notice letters were provided to the Director of the Service, rather than the Secretary of the Interior, and the court adhered to precedent holding that failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA.  Further, the court reasoned that the failure to notify the Secretary of the Interior is the sort of failure to take the minimal steps necessary that does not weigh in favor of modifying statutory requirements.  The court concluded that failure to notify the correct parties was a clear impediment to jurisdiction, and the motion to dismiss was granted without leave to amend.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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