Court Holds Pre-Violation Notice Under the Endangered Species Act Is Akin to No Notice At All

Under the Endangered Species Act (ESA), a citizen plaintiff is required to provide a notice no less than 60-days before filing certain types of lawsuits against the federal government.  For example, a 60-day notice is required before a citizen plaintiff may file a lawsuit seeking to compel the U.S. Fish and Wildlife Service (Service) to issue a decision on an ESA listing petition.  The primary purpose of the 60-day notice is to give the federal government an opportunity to review and, if necessary, correct the alleged ESA violation before incurring the cost of defending a lawsuit.  Failure to meticulously comply with the 60-day notice requirement often results in a dismissal of the lawsuit.  As a result, the 60-day notice requirement is often seen as a trap for the unwary.   In Friends of Animals v. Ashe, No. 14-5172 (D.C. Cir. Dec. 22, 2015), the plaintiff fell into this trap, as the court ruled that the notice of violation was simply too early to be effective.

Under the ESA, the Service must, to "the maximum extent practicable," within 90 days of receipt of a petition, make a finding as to whether a petition presents sufficient information demonstrating that the petitioned action may be warranted.  If the Service concludes in the initial 90-day finding that the petitioned action may be warranted, the ESA requires the Service to make a final listing determination on the petition within 12 months of receiving the petition.  After the Service failed to issue either initial 90-day findings or 12-month final determinations on numerous listing petitions for various species, Friends of Animals sent the Service a 60-day notice alleging that the Service failed to comply with both the 90-day finding and 12-month determination requirements under the ESA for each of the species.  More than 60 days thereafter, Friends of Animals filed a lawsuit in federal court alleging only that the Service failed to issue timely 12-month final determinations.

Both the district court and the U.S. Court of Appeals for the District of Columbia held that the 60-day notice provided by Friends of Animals was ineffective, because the violation alleged in the notice and complaint did not occur until after the 60-day notice was sent to the Service.  (For a further discussion of the district court's decision, see our prior post here.)

The D.C. Circuit Court of Appeals explained that the Service's obligation to issue a 12-month final determination does not arise until the Service issues an initial 90-day finding concluding that the petitioned action may be warranted.  At the time the 60-day notice was sent, the Service had not made any initial 90-day findings for the species at issue.  Accordingly, the court found that the Friends of Animals had merely provided notice "of a possible future violation of a duty that may never arise."  As such, the lawsuit brought by Friends of Animals was barred for failure to comply with the ESA's 60-day notice requirement.


  • Benjamin Z. Rubin

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

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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