Author: Damien M. Schiff
Yesterday, Center for Biological Diversity (CBD) and two other environmental groups announced their intention to sue the United States Fish & Wildlife Service's decision that listing the sage grouse under the Endangered Species Act (ESA) is "warranted but precluded" by higher-priority actions. Currently pending in federal court in Idaho is the Western Watersheds Project's own lawsuit against the Service over the sage grouse.
What's interesting about yesterday's announcement is the potential for conflict among the several environmental groups. Recall that WWP filed the original lawsuit challenging the Service's decision not to list the sage grouse, which led to the court-ordered remand that has produced the Service's most recent listing action. WWP has now moved to reopen that old case and amend its old complaint to challenge the new action. Trouble is, for many lawsuits against the Service challenging the agency's nondiscretionary actions, a plaintiff must first give 60 days notice. In the WWP litigation, WWP got around having to file the 60 day notice letter because it convinced the court that its lawsuit challenged a discretionary action of the Service. But CBD and the other environmental groups are providing notice, and thus presumably consider their lawsuit (which would challenge the same action as WWP's lawsuit) to challenge a discretionary action.
This dispute over notice and discretionary vs. nondiscretionary actions is not just academic. By characterizing the lawsuit as nondiscretionary, CBD et al. can avail themselves of the ESA's generous attorney's fees provisions, which are not available when challenging discretionary decisions of the Service. Also, if a plaintiff has not provided the 60 days notice, but should have, then the penalty is dismissal of the lawsuit until such notice has been provided.