The Federal Circuit has issued its decision in Salmon Spawning & Recovery Alliance v. U.S. Customs and Border Protection, holding in the main that plaintiff Salmon Spawning has standing to assert an Endangered Species Act section 7 claim against the United States Customs and the U.S. Fish & Wildlife Service for their alleged failure to consult the National Marine Fisheries Service over the lack of enforcement of the prohibition against importing ESA-listed salmon from Canada into the United States. Before getting to the merits of whether Customs did in fact violate Section 7, the Federal Circuit directed the U.S. Court of International Trade to first determine whether the CIT has exclusive jurisdiction to hear the case.
There are two noteworthy issues discussed in the Federal Circuit's opinion. First, the court determined that the plaintiffs' claim that the federal agencies violated section 9 for failing to enforce the salmon import prohibition could not proceed. This is because, according to the Supreme Court's opinion in Heckler v. Chaney, 470 U.S. 821 (1985), "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." According to the court, the failure to enforce the section 9 prohibition fell with agency discretion under Heckler because the Endangered Species Act "makes clear the discretionary nature of the defendants' enforcement powers stating only that officers 'may detain for inspection and inspect any package, crate, or other container, including its contents, and all accompanying documents, upon importation'; 'may make arrests'; and 'may search and seize.'" (citing 16 U.S.C. sec. 1540(e)(3)) (emphasis in Federal Circuit opinion).
The second issue worth mentioning is the court's disposition of the plaintiffs' claim that the federal agencies failed to consult with NMFS regarding the failure to enforce the salmon importation ban. Contrary to CIT's holding, the Federal Circuit held that the plaintiffs have met the redressability prong of standing and thus may proceed with their claim:
A favorable decision in the current case would be a holding that defendants do have an obligation to consult under section 7 regarding their failure to enforce the endangered salmon import ban. Rather than focus on whether such a favorable decision would likely provide plaintiffs' redress, the trial court mistakenly reasoned that there would not be a favorable result and thus Salmon Spawning would not be entitled to any relief. This is not an issue of standing but rather a question on the merits. . . .
[B]ecause consultation could require the defendants to more actively enforce the import ban, consultation could protect the plaintiffs' interests in the survival of the ESA-listed salmon, and it is precisely this interest which the procedure was designed to protect.
Given the plaintiffs' ability to proceed with their lawsuit, it will be interesting to follow the litigation, as a court holding that section 7 consultation is required even for failures to act would have significant consequences for government agencies — each and every decision would be subjected to ESA consultation, regardless of whether an agency chooses not to proceed.
For the moment, however, resolution of that issue in the Salmon Spawning litigation will have to wait, as the Court of International Trade must first determine per the Federal Circuit's instruction whether it has exclusive jurisdiction over the case.