Endangered Species Law & Policy

Last week, the U.S. District Court for the District of Columbia issued a ruling allowing the Center for Biological Diversity (CBD) to continue pursuing its large Endangered Species Act (ESA) lawsuit against the U.S. Fish and Wildlife Service (Service) and the Department of the Interior.

The underlying lawsuit, filed in 2019, alleges that the Service violated the ESA by failing to timely publish 12-month findings on nearly 200 listing petitions, final listing determinations for six species, and designations of critical habitat for four species.  In response, the Service filed a motion to dismiss the lawsuit.

The Service advanced three arguments to support its motion to dismiss.  First, it argued that CBD’s claims with respect to 196 species were time-barred, since CBD did not bring the claims within six years of the dates by which the Service was obliged to make its initial 12-month findings under the ESA.  Second, the Service argued that CBD failed to comply with the ESA’s notice requirements as to one species (Panama City crayfish) before suing the Service.  Third, the Service asserted that CBD’s claim as to another species, the island marble butterfly, was moot because the Service has since completed a final listing determination and critical habitat designation for the species.

In its opinion, the district court sided with the Service on its second and third species-specific arguments.  However, the court sided with CBD as to its claim regarding the other 196 species.

Addressing whether CBD’s action was time-barred, the court recognized that typically a six-year statute of limitations applies to all civil actions against the government.  However, the court found that this six-year statute of limitations did not bar CBD’s claim because the continuing violation doctrine applied as a result of the Service’s ESA-imposed obligation to make final listing determinations within twelve months of receiving the listing petitions for each of the species at issue.  The court stated that this 12-month deadline is a “mandatory, nondiscretionary dut[y].”  The court also noted that, in contrast to holdings in other circuits, the D.C. Circuit has previously held that there is no jurisdictional bar to imposing a continuing obligation on the Service under the ESA and thus the doctrine could apply in this case.

Applying the continuing violation doctrine to the Service’s actions, the court found that the six-year timeframe within which CBD was required to bring suit kept resetting as a result of the Service’s continued failure to make the 12-month findings for the 196 species.  Therefore, CBD’s claims remained timely and the Court denied the Service’s motion to dismiss those claims.

While the court was only opining on the timeliness of CBD’s claims (and not their underlying merit), the result of the decision is that CBD can continue to pursue these and other lawsuits against the Service for failure to abide by ESA-mandated deadlines.