A federal district court in New Hampshire recently dismissed a citizen suit making novel claims under the Endangered Species Act (ESA) because the plaintiff could not prove that he had provided the required 60-day notice to the defendants prior to suit. Strahan v. Nielsen, 2018 WL 3966318 (D.N.H. Aug. 17, 2018). Plaintiff, a conservation biologist seeking “to prevent what he describes as the ‘6th Great Extinction of Life on Earth,'” contended that certain immigration policies administered by the Department of Homeland Security (DHS) have resulted in an increase in the human population of the United States which, according to plaintiff, “must necessarily contribute to the extinction of a variety of native plant and animal species.” 2018 WL 3966318, at *2. Plaintiff claimed that DHS violated the consultative provision of section 7 of the ESA and the “taking” prohibition in section 9 of the ESA.
The court found that plaintiff had Article III standing to sue. Plaintiff’s “injury in fact” apparently was satisfied by his claim that he lives in the areas where some of the allegedly affected species habituate and 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.” Id. at *4.
However, the court had no jurisdiction over plaintiff’s ESA claims because he had not demonstrated compliance with the requirement in ESA § 11(g)(2)(A)(i) that he had given 60 days’ written notice prior to suit of the alleged ESA violation “to the Secretary [of the Interior], and to any alleged violator.” 16 U.S.C. § 1540(g)(2)(A)(i):
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.
Id. at *5. While plaintiff claimed that he had sent the 60-day notice, the evidence was unrefuted that none of the agencies involved had received it. The case therefore was dismissed without prejudice to the filing of a “new citizen suit that complies with the 60-day notice requirement.” Id. at *6.
The 60-day notice requirement is more than a technical step in an ESA case. As the court here observed, the requirement allows the putative defendant the opportunity to correct the alleged violation without court intervention. But the notice requirement also serves to define the jurisdiction of the presiding court. Even where the notice requirement has been satisfied, the plaintiff will be limited in his or her judicial case to the issues actually raised in the 60-day notice.