RESTORE v. U.S. Dep't Interior CV-95-37-JD 08/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

RESTORE: The North Woods, et al.

v. Civil No. 95-37-JD

United States Department of Interior, et al.

O R D E R

The plaintiffs, RESTORE: The North Woods, Jeffrey W. Elliot,

Charles Fitzgerald, and Biodiversity Legal Foundation, bring this

action against the defendants, Bruce Babbitt, in his capacity as

Secretary of the United States Department of the Interior

("DOT"); Mollie Beattie, in her capacity as Director of the Fish

and Wildlife Service ("FWS"); Ron Brown, in his capacity as

Secretary of the United States Department of Commerce ("DOC");

and Rolland Smitten in his capacity as Assistant Administrator

for Fisheries of the National Marine Fisheries Service

("NMFS")(collectively "the Services") pursuant to the Endangered

Species Act ("ESA"),

et sea., and the

Administrative Procedure Act ("APA"), seeking declaratory and

injunctive relief, court costs, and attorney fees for an alleged

violation of a statutory deadline governing non-discretionary

administrative findings under the ESA. The court has

jurisdiction pursuant to

and

(c). Before the court are (1) the plaintiffs' motion for

summary judgment (document no. 3); (2) the plaintiffs' motion to

amend (document no. 4); and (3) the Services' motion to dismiss

(document n o . 7).

Background

I. The Endangered Species Act

In 1973, Congress enacted the Endangered Species Act "to

provide a means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved, [and] to

provide a program for the conservation of such endangered species

. . . ."

(b). A "'species' includes any

subspecies of fish or wildlife or plants, and any distinct

population segment of any species of vertebrate fish or wildlife

which interbreeds when mature."

(16).

Responsibility for identifying threatened and endangered

species is shared by the Secretary of the Interior, who is

responsible for terrestrial species, and the Secretary of

Commerce, who is responsible for marine species.

(a)(1, 2). When a species is found to be endangered or

threatened, the Secretary of the Interior must list it in the

Federal Register, and it is entitled to protection under the ESA.

(c, d) .

2 Interested parties may petition the Secretary to add or

remove a species from the threatened or endangered lists.

(e). The Secretary has ninety days after receipt of

a petition to determine whether it presents sufficient

information to justify an investigation into whether the species

is entitled to protection.

(b)(3)(A).

Thereafter,

[w]ithin 12 months after receiving a petition that is found . . . to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the followingfindings: (i) The petitioned action is not warranted . . .; (ii) The petitioned action is warranted . . .; (ill) The petitioned action is warranted, but . . . is precluded by pending proposals.

(b)(3)(B).

An interested party may bring a civil lawsuit against the

Secretary for failure to make such a finding within the twelve

month period.

(g)(1)(C). However, the lawsuit

may not be commenced "prior to sixty days after written notice of

the violation has been given to the Secretary . . . ."

(g) (2) (A) (i) .

II. Factual Background

On October 1, 1993, the plaintiffs petitioned the Services

under the ESA to add the Atlantic salmon to the list of protected

species. See Complaint at 5 26. On January 20, 1994, the

Services announced that the petition presented sufficient

3 information to be considered and declared they would determine

whether the action requested by the plaintiffs was warranted.

See

(Jan. 20, 1994). The plaintiffs filed a

sixty-day notice of a violation on November 14, 1994, and

commenced this lawsuit on January 20, 1995, alleging that the

Services violated the twelve month deadline.

On February 27, 1995, the plaintiffs filed a motion for

summary judgment on the ground that the Services had violated the

ESA and APA as a matter of law and requested court costs and

attorney fees. Plaintiffs' Motion for Summary Judgment at 1-2.

On March 2, 1995, the plaintiffs filed a "Motion to Amend

Proposed Order" seeking a court order "directing that any Finding

or Ruling made by FWS and NMFS be made retroactive to October 1,

1994." See Plaintiffs' Motion to Amend Proposed Order at 5 3(a) .

On March 17, 1995, the Services published a finding of "not

warranted" on the petition, stating that the Atlantic salmon as

described in the petition did not qualify as a "species" under

the ESA. See

(Mar. 17, 1995). However, in

the same publication, the Services concluded that there was

sufficient evidence to list a distinct population segment (DPS)

of the Atlantic salmon as deserving of protection under the ESA

in certain areas.

.

4 On March 27, 1995, the Services filed their motion to

dismiss, on the grounds that the plaintiffs' lawsuit became moot

when the "not warranted" finding was issued. Defendants' Motion

to Dismiss at 1-2.

Discussion

I. Defendants' Motion to Dismiss

The Services contend that the plaintiffs' claim is moot

because the alleged violation of the statutory scheme has passed

and will not recur. Defendants' Memorandum of Law in Support of

Motion to Dismiss at 6. The plaintiffs respond that the alleged

violation is of an ongoing nature because the Services' finding

was partial and, in the alternative, that their claim falls under

an exception to the mootness doctrine. Plaintiffs' Memorandum in

Opposition to Defendants' Motion to Dismiss at 2, 5.

Article III of the Constitution limits the court's

jurisdiction to the resolution of actual cases or controversies.

U.S. Const, art. Ill, Sec. 2, cl. 1; Lewis v. Continental Bank

Corp.,

(1990); Oakville Dev. Corp. v. EPIC,

(1st Cir. 1993). The court lacks the authority "to

issue advisory opinions . . . [or] to decide guestions that

cannot affect the rights of litigants in the case before [it]."

North Carolina v. Rice,

(1971) (per curiam)

(citations omitted). Although an action may present a live

5 controversy at the time of filing, subsequent events may render

the action moot. See, e.g., Kremens v. Bartley,

(1977) (constitutional challenge to statute rendered moot by

enactment of superseding statute); Board of License Comm'rs v.

Pastore,

(1985) (per curiam) (lawsuit

challenging restrictions placed on business rendered moot by

closure of business). When no case or controversy exists, a

claim is moot because its resolution would not affect the

parties' legal interests. Air Line Pilots Ass'n v. UAL Corp.,

(7th Cir. 1990); see Oakville Dev. Corp.,

; New Bank of New England, N.A. v. Tritek

Communications, Inc.,

, 17 n.l (D. Mass. 1992). The

court must dismiss moot claims. Oakville Dev. Corp.,

.

An exception to the mootness doctrine attaches where the

conduct being challenged is "capable of repetition, yet evading

review." Weinstein v. Bradford,

(1975) (per

curiam). In order to invoke the exception, the plaintiff "must

show that '(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration,

and (2) there was a reasonable expectation that the same

complaining party would be subjected to the same action again.'"

Boston Teachers Union, Local 66 v. Edgar,

(1st

6 Cir. 1986) (quoting Murphy v. Hunt,

(1982) (per

curiam)). See, e.g., Nebraska Press Ass'n v. Stuart,

(1976) (short-lived restrictive orders on press

coverage of criminal trials capable of repetition, but evading

review); Roe v. Wade,

(1973) (length of

gestation period sufficiently short so as to preclude appellate

review of claims concerning a woman's right to terminate

pregnancy). Finally, contentions that other parties could be

subject to future violations are insufficient to trigger the

exception. Oakville Dev. Corp.,

("the

possibility -- or even the probability -- that others may be

called upon to litigate similar claims does not save a particular

plaintiff's case from mootness").

The Services concede that, at the time the lawsuit was

filed, they were in violation of the ESA because they had not

announced a finding on the Atlantic salmon petition within the

statutory time frame. This violation continued until March 17,

1995, the date the Services finally acted on the petition.

Having satisfied their statutory obligations, the Services are at

present in compliance with the ESA. Accordingly, the claim under

(g)(1)(C) no longer presents a live controversy.1

1The plaintiffs contend that their lawsuit is not moot because the Services only granted part of the relief requested in the petition. However, the statute grants the Services the

7 However, the plaintiffs assert that their claim survives the

instant motion because the Services' violation of the ESA is

capable of repetition yet evades review. According to the

plaintiffs, the Services "will continue to abuse their

discretion" by "interpreting petitions in a manner inconsistent

with the purposes of the Act . . . Plaintiffs' Memorandum in

Opposition to Defendants' Motion to Dismiss at 5.

Although the plaintiffs have asserted that they will

continue to be harmed by future violations of the twelve month

reguirement of § 1533(b)(3)(B), they have advanced no evidence to

support this bald contention in either their opposition to the

motion to dismiss or their motion for summary judgment. The

plaintiffs, unable to substantiate a reasonable expectation that

they will be subjected to the same or a similar violation in the

future, are not entitled to invoke the capable of repetition but

evading review exception. Because there is no viable theory

ability to include "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature . . . ." as a species for purposes of protection under the ESA.

(16). Thus, the Services were authorized to extend protection to some categories of Atlantic salmon but not others. See, e.g.

(Dec. 12, 1994) (listing of pygmy owl warranted in Arizona and Texas, not warranted in Mexico). under which the plaintiffs may recover, the Services' motion to

dismiss is granted.2

II. Court Costs and Attorney Fees

The plaintiffs assert that they are entitled to reasonable

court costs and attorney fees under

(g) (4)

because their lawsuit has advanced the purposes and goals of the

ESA. Plaintiffs' Memorandum in Opposition to Defendants' Motion

to Dismiss at 6-7. The Services respond that such an award is

inappropriate in this case because the plaintiffs are not

prevailing parties and have not assisted in any novel

interpretation or exceptional implementation of the Act.

Defendants' Reply to Petitioners Opposition to Defendants' Motion

to Dismiss at 7.3

2In their "Motion to Amend Proposed Order" (document no. 4), the plaintiffs seek alternative relief in the form of a court order "directing that any Finding or Ruling made by FWS and NMFS be made retroactive to October 1, 1994." Given the finding, supra, that the only claim alleged in the plaintiffs' complaint is moot, there is no longer a basis upon which a reguest for relief, retroactive or otherwise, may be maintained.

3The Services assert, without authority, that the plaintiffs' claim for attorney fees is not properly resolved in the context of a motion to dismiss. Nonetheless, the parties have briefed the issue and the court will proceed accordingly. See, e.g.. Broadcast Music v. Rindae Lane Corp., No. 93-460-JD, slip op. at 30 (D.N.H. March 27, 1995) (court awarded attorney fees to plaintiff when ruling on motion for summary judgment, subject to submission of an itemized claim for fees by plaintiff and written objection by defendant). When issuing a final order in a civil lawsuit, the court

"may award costs of litigation (including reasonable

attorney . . . fees) to any party, whenever the court determines

that such an award is appropriate."

(g)(4). The

fact that the plaintiffs' claim is moot does not preclude an

award of costs and attorney fees. See, e.g.. Conservation Law

Found, v. Secretary of Interior,

(1st Cir.

1986) (award of fees under ESA appropriate even though case

dismissed as moot prior to trial on the merits).

In interpreting a virtually identical "whenever appropriate"

fee award provision under the Clean Air Act, the Supreme Court

held that in order to gualify for a fee, a party must at least

achieve "some success, even if not major success." Ruckelshaus

v. Sierra Club,

(1983) . The First Circuit has

interpreted the "whenever appropriate" standard of the ESA's fee

award provision to mean "notable progress, short of full

achievement, on any issue of substance." Conservation Law

Foundation,

(interpreting Ruckelshaus). In

addition, "the dominant consideration is whether litigation . . .

has served the public interest by assisting in the interpretation

or implementation" of the Act. Alabama Power Co. v. Gorsuch, 672

F .2d 1, 3 (D.C. Cir. 1982).

10 The court finds that an award of reasonable attorneys fees

is appropriate because the plaintiffs have assisted in the

implementation of and government compliance with the ESA and have

thereby served the public interest. The plaintiffs have achieved

"notable progress" on a significant issue in that their petition

and subseguent lawsuit led the Services to designate a distinct

population segment of the Atlantic salmon as a species deserving

of protection under the ESA.4 Finally, the court notes that no

unfairness results from an award of fees because the twelve month

statutory period and the sixty-day notice period afforded the

Services ample opportunity to act on the plaintiffs' petition.

Even with that opportunity, the Services violated the ESA by

failing to act upon the plaintiffs' petition until almost three

months after this lawsuit was commenced.

Accordingly, by August 25, 1995, the plaintiffs shall submit

an itemized claim for costs and fees under oath, supported by a

detailed breakdown of the work accomplished, who performed each

4The Services, referring to Hallstrom v. Tillamook County,

(1989), argue that the plaintiffs erroneously rely on a "catalyst" theory in support of their claim for attorney fees. The Services' reliance on that case is misplaced. Hallstrom, which did not address the issue of attorney fees, held that a Resource Conservation Recovery Act lawsuit must be dismissed where the plaintiff did not satisfy the sixty-day notice reguirement of the statute. In contrast, the plaintiffs in the present case have satisfied the sixty-day notice reguirement of the ESA and, therefore, Hallstrom is inapplicable.

11 task and on which day, the professional qualifications of each

billing individual, and a list of disbursements. The Services

shall have fifteen days from date of service of plaintiffs' claim

to file any objection. The court directs the parties to engage

in a good faith effort to agree on the amount of costs and fees

to be awarded.

Conclusion

For the reasons stated, the court (1) grants the Services'

Motion to Dismiss (document no. 7); and (2) grants the

plaintiffs' request for court costs and attorney fees. The

plaintiffs' Motion for Summary Judgment (document no. 3) and

"Motion to Amend Proposed Order" (document no. 4) are moot.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge August 4, 1995

cc: Jonathan McNeal, Esquire Kelly E. Mofield, Esquire

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