In a recent decision, the U.S. Court of Appeals for the District of Columbia affirmed the dismissal of an environmental organization’s Endangered Species Act (ESA) claim, concluding that the organization lacked standing because the informational injury alleged in the complaint could not, as a matter of law, arise until after the U.S. Fish and Wildlife Service (Service) issued a 12-month finding under the ESA, and the complaint expressly alleged that the Service had not issued such a finding.  Friends of Animals v. Jewell, No. 15-5223 (D.C. Cir. July 15, 2016).

Under Section 4 of the ESA, when the Service receives a petition to add or remove a species from the list of threatened and endangered species, it must make a finding regarding whether or not the action may be warranted within 90-days of receiving the petition (90-day finding).  16 U.S.C. § 1533(b)(3)(A).  If the Service concludes in the 90-day finding that the petitioned action may be warranted, then the ESA requires the Service to issue a finding within 12 months on whether the action is warranted (12-month finding).  16 U.S.C. § 1533(b)(3)(B).  The second finding is referred to as a 12-month finding, because the Service is supposed to issue the finding within 12 months of having received the petition.  The 12-month finding may conclude that the listing action is not warranted, warranted, or warranted but precluded by pending proposals to list other species.  16 U.S.C. § 1533(b)(3)(B)(i)-(iii).  When the Service makes a 12-month finding, the ESA mandates that the Service publish certain information in the Federal Register.  Id.  The type of information published depends upon the finding made.

In 2013, the plaintiff filed listing petitions for two species.  While the Service made 90-day findings for each species concluding that listing may be warranted, the Service failed to make 12-month findings within 12 months of receiving the petitions.  Accordingly, the plaintiff filed suit, alleging that the Service failed to comply with Section 4 of the ESA by failing to make the 12-month findings within 12 months of receiving the petition.  In order to justify its standing to bring the suit, the plaintiff alleged that the organization had informational standing, organizational standing, and associational standing.  The Service moved to dismiss the complaint for lack of standing, and the district court granted the motion.

The plaintiff appealed, raising a single argument – that the district court incorrectly concluded that it lacked informational standing.  The D.C. Circuit explained that under Section 4 of the ESA, the Service’s obligation to provide the statutorily required information only arises after it issues a 12-month finding.  In support of this conclusion, the court found that the structure of Section 4 “makes clear that these requirements arise sequentially . . . .”  Because it was undisputed that the Service had not issued the 12-month finding – indeed, this was the very basis for filing the lawsuit – the D.C. Circuit found that the plaintiff lacked informational standing, and affirmed the dismissal of the complaint.

In affirming the dismissal, the D.C. Circuit noted that it was addressing a very limited question, and was not opining as to whether the plaintiff could demonstrate associational or organizational standing, or some injury based on “some other cognizable injury in fact.”  The court also noted that the decision does not preclude informational standing for all ESA Section 4 challenges.  In fact, the court opined that if a plaintiff’s complaint alleged that a 12-month finding had been made, and that the Service failed to include the information required by Section 4, a plaintiff “may well have informational standing to sue to compel the publication of the relevant data . . . .”