United States Federal Circuit

In a suit alleging violations of defendants' duties under the Endangered Species Act (ESA) in failing to enforce a ban on importing endangered and threatened fish, and failing to consult with National Marine Fisheries Service regarding this lack of enforcement, dismissal for lack of standing is affirmed in part where: 1) plaintiff's claim under section 9 of the ESA challenges a presumptively unreviewable agency decision; and 2) section 11(g)(1)(A) of the ESA does not allow challenges to the implementation and enforcement of the ESA. However, dismissal is reversed and remanded in part where: 1) a claim alleging a violation of the procedural requirements of section 7(a)(2) satisfies the redressibility prong of standing analysis; and 2) the section 7 claim may fall within the court's exclusive jurisdiction under 28 U.S.C. section 1581. (Revised opinion)

Appellate Information

• Decided 12/18/2008
• Published 12/18/2008

Judges

• Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and YOUNG, District Judge .

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Svend A. Brandt-Erichsen, Heller Ehrman LLP, of Seattle, WA, argued for plaintiffs-appellants.   With him on the brief was Michael R. Thorp.


• For Appellees:
  
• Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees.   With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, and Jeanne E. Davidson, Director.   Of counsel on the brief was Michael Bancroft, Attorney Advisor, Office of General Counsel, National Oceanic and Atmospheric Administration, of Seattle, WA.