UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Richard Maximus Strahan

v. Civil No. 18-cv-161-JL Opinion No.

Kirstjen Nielsen, in her official capacity as the Secretary of Homeland Security and the Department of Homeland Security, et al.

MEMORANDUM ORDER

Whether plaintiff Richard Strahan may maintain his

environmental-based challenge to immigration policy turns on

whether the relevant administrative agencies received the

statutorily-required 60 days’ notice of his intent to bring this

action before he filed his complaint. Strahan brings this

citizen suit under the Endangered Species Act (ESA), see

(g), against the Secretary of Homeland Security and

her Department (DHS), the director of the United States Fish and

Wildlife Service (FWS), and the assistant administrator of the

National Marine Fisheries Service (NMFS). He alleges that DHS

failed to comply with the ESA when it neglected to consult with

the FWS and NMFS before implementing immigration policies that

increases the population of the United States, see

§ 1536(a), and that its actions implementing such policies and

issuing visas and other immigration documents under those policies constitute a prohibited “taking” of endangered species

under § 1538(a) of the ESA. This court has subject-matter

jurisdiction over this action pursuant to

(federal question) and

(c) (district court

jurisdiction over actions arising under the ESA).

The defendants have moved to dismiss this action citing

Strahan’s lack of standing, see Fed. R. Civ. P. 12(b)(1), and

alleging that he failed to provide the statutorily-required 60-

day notice to the defendant agencies before initiating this

lawsuit. They also contend that Strahan fails to plead a cause

of action on which this court can grant relief. See

Rule 12(b)(6). While Strahan has demonstrated an injury-in-fact

sufficient to satisfy that element of the standing analysis (and

the defendants have not provided any argument with respect to

the other two elements), based on the evidence presented by the

parties’ filings, the court concludes that the defendant

agencies did not receive Strahan’s notice of intent to sue.

Because such notice is a necessary prerequisite to the claims

Strahan seeks to assert, see

(g), the court

dismisses his action without prejudice. And, having done so on

jurisdictional grounds, it does not reach the merits of the

defendants’ Rule 12(b)(6) challenge.

2 Applicable legal standard

When it considers a motion to dismiss for lack of standing

under Rule 12(b)(1), the court “accept[s] as true all well-

pleaded factual averments in the plaintiff’s complaint and

indulge[s] all reasonable inferences therefrom in his favor.”

Katz v. Pershing, LLC,

(1st Cir. 2012) (internal

quotation marks omitted). The court may also consider material

outside the pleadings, such as affidavits. Gonzalez v. United

States,

, 287–88 (1st Cir. 2002).

“[A] suit will not be dismissed for lack of standing if

there are sufficient allegations of fact . . . in the complaint

or supporting affidavits.” Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

(1987) (internal

quotations omitted). To satisfy this standard, the plaintiff

“must set forth reasonably definite factual allegations, either

direct or inferential, regarding each material element needed to

sustain standing.” United States v. AVX Corp.,

(1st. Cir. 1992). In other words, “the facts necessary to

support standing must clearly appear in the record and cannot be

inferred argumentatively from averments in the pleadings.”

Background

Strahan, a conservation biologist, seeks to prevent what he

describes as the “6th Great Extinction of Life on Earth” -- that

3 is, a mass extinction of plant and wildlife species.1 He alleges

that an increase in the population of the United States must

necessarily contribute to the extinction of a variety of native

plant and animal species2 and that eight immigration-related

programs administered by DHS contribute to the country’s growing

population.3 Strahan contends that DHS violated Sections 7 and 9

of the Endangered Species Act of 1973 (ESA) by implementing

these immigration-related programs which, he alleges, impact a

variety of species listed as endangered in the United States.

Section 7 of the ESA obligates federal agencies to “utilize

their authorities in furtherance of the purposes of this chapter

by carrying out programs for the conservation of endangered

species and threatened species listed pursuant to section 1533

of this title.”

(a)(1). In doing so, federal

agencies must also “insure that any action authorized, funded,

or carried out by such agency . . . is not likely to jeopardize

the continued existence of any endangered species or threatened

species or result in the destruction or adverse modification of

habitat of such species . . . .”

(a)(2).

1 Compl. (doc. no. 1) ¶ 1. 2 Id. ¶ 2. 3 Id. ¶ 3.

4 Agencies must “use the best scientific and commercial data

available” in performing this evaluation. Id.

Agencies must undertake these actions “in consultation with

and with the assistance of the Secretary” of the Department of

Commerce or the Interior. Id. §§ 1536(a)(1)-(2). The

Secretaries of the Departments of the Interior and Commerce have

delegated responsibility for such consultations with respect to

terrestrial and fresh-water species to the FWS and with respect

to marine species to the NMFS. See Strahan v. Coxe,

(D. Mass. 1996) (outlining delegation).

Consultation under Section 7 may be formal, see

, or informal, see

§ 402.13. “Informal consultation

occurs when the action-proposing agency determines in a

biological assessment that the action ‘is not likely to

adversely affect listed species or critical habitat,’ and the

wildlife agency concurs in writing, thereby terminating the

consultation process.” All. for the Wild Rockies v. Savage, No.

16-35589,

, at *2 (9th Cir. July 26, 2018)

(citing

). “In contrast, formal consultation

occurs when the proposed action ‘may affect’ listed species or

critical habitat, and requires the consulting agency . . . to

prepare a biological opinion” on the potential impact of the

agency’s proposed action on the relevant species or habitat.

(citing

).

5 Strahan contends that DHS failed to engage in this

consultative process mandated by § 7(a)(1) before implementing

several immigration-related programs, most of which were

established by Congress through the Immigration and

Naturalization Act.4 Such programs lead to an increase in the

United States population, he alleges, and thus negatively impact

the populations of endangered and potentially-endangered species

such as the northern right whale, the monarch butterfly, the

eastern gray wolf, and the rusty patch bumble bee.

Strahan further contends that, by engaging in these

immigration-related programs, DHS violated § 9(a) of the ESA.

That section renders it “unlawful for any person subject to the

jurisdiction of the United State to . . . take any [species of

fish or wildlife listed as endangered] within the United States

or the territorial sea of the United States,”

(a)(1)(B), or “to attempt to commit, solicit another to

commit, or cause to be committed, any offense defined in this

section,”

§ 1538(g). The ESA defines “take” as, among other

actions, “to harm” a species,

(19), and further

defines “harm” to include “significant habitat modification or

degradation” that “actually kills or injures wildlife,”

. Specifically, Strahan argues that by allowing

4 Compl. (doc. no. 1) ¶¶ 5, 37-38.

6 the population of the United States to increase, DHS is

“incidentally taking ESA listed species of plants and animals .

. . .”5

Strahan brings this action under the citizen-suit provision

of the ESA, which authorizes “any person” to:

commence a civil suit on his own behalf--

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or

(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; . . . .

(g)(1)(A)-(B). Under the only exception

relevant here, no such action may be commenced “prior to sixty

days after written notice of the violation has been given to the

Secretary, and to any alleged violator of any such provision or

regulation.”

§ 1540(g)(2)(A)(i).

5 Compl. (doc. no. 1) ¶¶ 97-98.

7 Analysis

A. Standing

“Federal courts are courts of limited jurisdiction. They

possess only that power authorized by Constitution and statute

. . . .” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994) (internal citations omitted). The Constitution

vests “[t]he judicial Power of the United States” in the federal

courts, U.S. Const. Art. III, § 1, but extends this power only

to “Cases” and “Controversies.” Id. Art. III, § 2. “And ‘[n]o

principle is more fundamental to the judiciary’s proper role in

our system of government than the constitutional limitation of

federal-court jurisdiction to actual cases or controversies.’”

Spokeo, Inc. v. Robins,

(2016) (quoting

Raines v. Byrd,

(1997)).

“[T]he justiciability doctrine[ ] of standing” is one “of

the limitation’s manifestations . . . .” Reddy v. Foster,

(1st Cir. 2017). That doctrine “limits the

category of litigants empowered to maintain a lawsuit in federal

court to seek redress for a legal wrong.” Spokeo,

. Strahan, as the party asserting this court’s

jurisdiction, bears the burden of establishing his standing to

obtain the requested relief.

To do so, he must demonstrate

that he has “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and

8 (3) that is likely to be redressed by a favorable judicial

decision.”

(citing Lujan v. Defenders of Wildlife,

(1992)). These standing principles apply to citizen

suits brought under the ESA. Lujan,

.

The defendants contend that Strahan has not demonstrated

the first of these elements -- an injury in fact.6 Strahan

brings this action as an individual, and thus must demonstrate

that he, himself, has suffered injury in fact.7 “To establish

injury in fact, a plaintiff must show that he or she suffered

‘an invasion of a legally protected interest’ that is ‘concrete

and particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’” Spokeo,

(quoting Lujan,

). “These requisites must be proved ‘with the manner

and degree of evidence required at the successive stages of the

litigation.’” Maine People’s All., 471 F.3d at 283. As such,

“[a]t the pleading stage, general factual allegations of injury

6 While they note in an introductory sentence that he “has not established any of the elements of standing,” Mot. to Dismiss (doc. no. 16) at 8, and at oral argument addressed the other two elements, they did not develop any such arguments in their briefing. 7 If he brought this action on behalf of his organization, Whale Safe, he would still be required to demonstrate “that individual members would have standing to sue in their own right.” Maine People’s All. And Nat. Res. Def. Council v. Mallinckrodt, Inc.,

(1st Cir. 2006) (citing Friends of the Earth, 528 U.S. at 181).

9 resulting from the defendant’s conduct may suffice, for on a

motion to dismiss we presume that general allegations embrace

those specific facts that are necessary to support the claim.”

Lujan,

(internal quotations omitted).

“[E]nvironmental plaintiffs adequately allege injury in

fact when they aver that they use the affected area and are

persons “for whom the aesthetic and recreational values of the

area will be lessened” by the challenged activity.” Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

(2000). For example, “allegations that plaintiffs have

a strong interest in viewing animals in living conditions that

do not violate the ESA and who show that they would go visit the

animals if the animals’ conditions were improved have shown

injury in fact.” Missouri Primate Found. v. People for Ethical

Treatment of Animals, Inc., No. 4:16 CV 2163 CDP,

, at *2 (E.D. Mo. Mar. 22, 2018) (citing Hill v. Coggins,

, 505–506 (4th Cir. 2017), cert. denied, No. 17–865,

(U.S. Feb. 20, 2018)).

While a plaintiff cannot “satisfy the demands of” the

standing doctrine “by alleging a bare procedural violation,”

Spokeo, Inc.,

, that is not all that Strahan

does here. He alleges that he “liv[es] in the habitats of many

listed endangered species” and engages in “professional work as

a conservation scientist whose job is to stop the 6th Wave of

10 Extinction.”8 In his second verified objection to the motion to

dismiss, Strahan further alleges that he is “attempting to

reintroduce the Eastern Grey Wolf and Rusty Patched Bumble Bee

into their former range located within the political boundaries

of the northeastern United States,” where he resides.9

Accordingly, though his allegations must ultimately be proven,

Strahan has pleaded facts that establish an injury-in-fact

sufficient to maintain a citizen suit under the ESA.

B. Notice of intent to bring suit

No citizen suit under the ESA may be commenced “prior to

sixty days after written notice of the violation has been given

to the Secretary, and to any alleged violator of any such

provision or regulation.”

§ 1540(g)(2)(A)(i). Failure to

comply with this 60-day notice requirement obligates the court

to dismiss the citizen suit.10 Hallstrom v. Tillamook Cty., 493

8 Compl. (doc. no. 1) ¶ 16. 9 Second Obj. (doc. no. 18) at 2. 10The First Circuit Court of Appeals has not directly addressed whether the ESA’s notice requirement is jurisdictional, but has concluded that an almost-identically worded requirement under the Resource Conservation and Recovery Act “is not a technical wrinkle or superfluous formality that federal courts may waive at will,” but rather “is part of the jurisdictional conferral from Congress that cannot be altered by the courts.” Garcia v. Cecos Int’l, Inc.,

(1st Cir. 1985). See also Save the Yaak Comm. v. Block,

(9th Cir. 1988) (construing ESA requirement as jurisdictional in part because

(1989); see also Maine Audubon Soc. v. Purslow,

(D. Me. 1987), aff’d,

(1st Cir.

1990) (dismissing action for failure to comply with ESA’s 60-day

notice requirement).

The First Circuit Court of Appeals “read[s] the 60–day

notice requirement in environmental statute citizen suits

strictly.” Water Keeper All. v. U.S. Dep't of Def.,

(1st Cir. 2001). It “provides agencies with an

opportunity to resolve the dispute and take any necessary

corrective measures before a resort to the courts,” and as such

“must adequately inform the agency of the exact grievances

against it, if it is to fulfill this purpose.”

at 29-30

(citing Southwest Ctr. for Biological Diversity v. U.S. Bureau

of Reclamation,

, 520 (9th Cir. 1998)).

Accordingly, the 60 days’ notice must be given, as the statute’s

plain language contemplates, before the lawsuit commences. See

Garcia,

. Provision of notice during the action

itself does not suffice. See Maine Audubon,

.

Strahan, as the party asserting this court’s jurisdiction,

has the burden of establishing it, Dubois v. U.S. Dep't of

its 60-day notice requirement was virtually identical to the RCRA’s).

12 Agric.,

(1st Cir. 1996), and thus the burden

of proving that he provided the requisite notice, Strahan v.

Coxe,

(D. Mass. 1996), aff’d in relevant

part and vacated on other grounds,

(1st Cir. 1997)

(requiring Strahan to “prove that he provided notice to the

Secretary of Commerce before filing his Complaint or his suit

would be dismissed, without prejudice, for lack of

jurisdiction.”).

Because the 60-day notice functions to permit the agency to

remedy any alleged lack of compliance with or violation of the

ESA without judicial interference, it has been interpreted to

require not just that the notice be placed in the mail, but that

the relevant agency actually received it. See Ctr. for Envtl.

Sci., Accuracy & Reliability v. Sacramento Reg'l Cty. Sanitation

Dist., No. 115CV01103LJOBAM,

, at *3 (E.D. Cal.

June 3, 2016) (placing burden on plaintiff to prove that notice,

allegedly mailed, was actually received by agency). The

statute’s plain language, requiring that “written notice of the

violation has been given to the Secretary, and to any alleged

violator,”

§ 1540(g)(2)(A)(i) (emphasis added), supports

that interpretation. See Ctr. for Envtl. Sci., Accuracy &

Reliability,

, at *4.

Strahan has attached to his second verified objection a

copy of a notice dated September 6, 2017, and addressed to the

13 Secretary of Homeland Security, the Secretary of Commerce, the

Secretary of Agriculture, the Administrator of the National

Oceanographic and Atmospheric Agency (of which NMFS is a

division) and the Deputy Director of the US Fish and Wildlife

Service.11 Strahan alleged in his complaint12 and reiterates in

his objection13 that he provided this notice to the relevant

agencies on September 6, 2017 -- more than 60 days before he

filed his complaint on February 21, 2018.

The defendants each contend that they never received this

notice. They have attached to their motion to dismiss

declarations from employees at FWS, NMFS, and DHS, describing

the respective agencies’ processes and procedures for receiving,

logging, and reviewing notifications under § 1540(g)(2)(A)(i).14

Each employee also describes a search of the agency’s systems

and affirms that Strahan’s notification was not found therein.15

On that basis, they affirm that each respective agency, to their

knowledge, did not receive Strahan’s notice.16

11 Document no. 18-1. 12 Compl. (doc. no. 1-1) ¶ 16. 13 Second Obj. (doc. no. 18) at 1-2. 14See Gilbert Decl. (doc. no. 16-1); Pawlak Decl. (doc. no. 16- 2); Sessa Decl. (doc. no. 16-3). 15 Gilbert Decl. ¶¶ 7-8; Pawlak Decl. ¶¶ 3-4; Sessa Decl. ¶ 6. 16 Gilbert Decl. ¶ 9; Pawlak Decl. ¶ 5; Sessa Decl. ¶ 6.

14 Had only one agency been unable to find any record of

Strahan’s notice, the court might infer that it may have been

misplaced or misfiled. That all three were unable to locate any

record of that notice suggests more strongly that it simply was

not received. Accordingly, Strahan has not carried his burden

of demonstrating that he satisfied the 60-day notice requirement

of

(g)(2)(A)(i).17

Conclusion

For the reasons discussed herein, the defendants’ motion to

dismiss the complaint18 is GRANTED. This dismissal is without

prejudice to Strahan filing a new citizen suit that complies

with the 60-day notice requirement. Because the court dismisses

17While, as Strahan explained at oral argument, it may be difficult for him to prove that the notice reached the secretary or director of the relevant agency, it seems to the court that he could prove its delivery to the agency through, for example, a return receipt from United States Postal Service or other parcel tracking information from the USPS, Federal Express, UPS, or similar carrier.

At oral argument, counsel for the defendants provided Strahan with the following address for providing such notice to DHS:

Office of the Secretary Department of Homeland Security 245 Murray Lane SW Mail Stop 0350 Washington, D.C. 20528-0350 18 Document no. 16.

15 this action, Strahan’s remaining motions19 are denied as moot.

The clerk shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: August 17, 2018

cc: Richard Maximus Strahan, pro se Frederick H. Turner, Esq.

19 Document nos. 4, 20, 21, 22 and 23.

16