Salmon Spawning & Recovery Alliance v. U.S. Customs and Borders Protection

Jul 15: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. The case concerns the Endangered Species Act (ESA) and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials (defendants) for lack of subject matter jurisdiction.

The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA. The Appeals Court concluded that the Court of International Trade erred in dismissing the case for lack of standing, and remanded the case to the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade.

The Appeals Court defines the two specific complaints in the case saying, their [plaintiffs] two-count complaint alleged: (1) “By allowing continued import of ESA-listed salmon and steelhead in violation of § 9 of ESA, the Defendants are jeopardizing the continued existence of the listed salmon and steelhead in violation of § 7(a)(2),” (the “section 9 claim”); and (2) that “it is arbitrary and capricious and not in accordance with law, in violation of the Administrative Procedure Act . . . and a violation of section 7 of the ESA, for the U.S. Customs and Border Protection and U.S. Fish & Wildlife Service to continue to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA,” (the “section 7 claim”).

The Appeals Court notes that, "The issue of whether plaintiffs’ section 7 claim falls within the Court of International Trade’s exclusive jurisdiction, or instead should be brought in a district court, is one of first impression for this court and it raises difficult, novel issues concerning the scope of the Court of International Trade’s jurisdiction." In its conclusion, the Appeals Court says, "the Court of International Trade’s dismissal of plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack of standing is reversed, and the case is remanded to the Court of International Trade to determine whether the surviving claim falls within its exclusive jurisdiction."

Explaining further, the Appeals Court says, "If the Court of International Trade determines that the section 7 claim does not fall within its jurisdiction, it should transfer the case back to the District Court for the Western District of Washington. If it concludes that it does have jurisdiction over the claim, it should proceed with further proceedings consistent with this opinion."

Access the complete opinion (click here).