 United States Court of Appeals for the Federal Circuit

                                      2007-1444


                SALMON SPAWNING & RECOVERY ALLIANCE,
           NATIVE FISH SOCIETY and CLARK-SKAMANIA FLYFISHERS,

                                                     Plaintiffs-Appellants,

                                          v.


           UNITED STATES CUSTOMS AND BORDER PROTECTION,
         DIRK KEMPTHORNE, Secretary of the Interior, UNITED STATES
    DEPARTMENT OF THE INTERIOR, UNITED STATES FISH AND WILDLIFE
    SERVICE, CARLOS GUTIERREZ, Secretary of Commerce, UNITED STATES
    DEPARTMENT OF COMMERCE, D. ROBERT LOHN, in his official capacity,
       DEBORAH J. SPERO, in her official capacity, H. DALE HALL, in his
         official capacity, W. RALPH BASHAM, in his official capacity, and
         NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
                     NATIONAL MARINE FISHERIES SERVICE,

                                                     Defendants-Appellees.


        Svend A. Brandt-Erichsen, Heller Ehrman LLP, of Seattle, Washington, argued
for plaintiffs-appellants. With him on the brief was Michael R. Thorp.

      Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendants-appellees.
With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, and
Jeanne E. Davidson, Director. Of counsel on the brief was Michael Bancroft, Attorney
Advisor, Office of General Counsel, National Oceanic and Atmospheric Administration,
of Seattle, Washington.

Appealed from: United States Court of International Trade

Judge Judith M. Barzilay
    United States Court of Appeals for the Federal Circuit

                                     2007-1444

                SALMON SPAWNING & RECOVERY ALLIANCE,
           NATIVE FISH SOCIETY and CLARK-SKAMANIA FLYFISHERS,

                                                     Plaintiffs-Appellants,
                                          v.

             UNITED STATES CUSTOMS AND BORDER PROTECTION,
                  DIRK KEMPTHORME, Secretary of the Interior,
               UNITED STATES DEPARTMENT OF THE INTERIOR,
                 UNITED STATES FISH AND WILDLIFE SERVICE,
                  CARLOS GUTIERREZ, Secretary of Commerce,
                UNITED STATES DEPARTMENT OF COMMERCE,
                    D. ROBERT LOHN, in his official capacity,
                   DEBORAH J. SPERO, in her official capacity,
                      H. DALE HALL, in his official capacity,
                   W. RALPH BASHAM, in his official capacity,
     and NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL
                         MARINE FISHERIES SERVICE,

                                                     Defendants-Appellees.

Appeal from the United States Court of International Trade in case no. 06-00191, Judge
Judith M. Barzilay

                          ___________________________

                           DECIDED: December 18, 2008
                           __________________________

                          ON PETITION FOR REHEARING

Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and YOUNG, District Judge*.
______________________ 

          *     The Honorable William G. Young, District Judge, United States District
Court for the District of Massachusetts, sitting by designation.
 
GAJARSA, Circuit Judge.

         This case concerns the Endangered Species Act (“ESA”) and the scope of the

jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants

Salmon Spawning and Recovery Alliance, Native Fish Society, and Clark-Skamania

Flyfishers (collectively “Salmon Spawning” or “plaintiffs”) appeal a final judgment of the

Court of International Trade dismissing their complaint against various federal agencies

and officials (the “defendants”) for lack of subject matter jurisdiction. Salmon Spawning

& Recovery Alliance v. Basham, 477 F. Supp. 2d 1301 (Ct. Int’l Trade 2007) (Salmon

Spawning II). The complaint alleges that the defendants violated their duties under the

ESA when they failed to enforce the ban on importing endangered and threatened

salmon and steelhead into the United States and failed to consult with National Marine

Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of

the ESA. On July 15, 2008, we issued a decision in which we concluded that the Court

of International Trade erred in dismissing the case for lack of standing and remanded to

the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2)

of the ESA falls within the exclusive jurisdiction of the Court of International Trade.

Salmon Spawning & Recovery Alliance v. United States, 532 F.3d 1338 (Fed. Cir.

2008).

         On August 29, 2008, defendants filed a petition for rehearing for the limited

purpose of reconsidering statements made in this court’s original opinion regarding

whether the Court of International Trade may exercise “supplemental” jurisdiction

pursuant to 28 U.S.C. § 1367(a). In response Salmon Spawning elected to take no



                                             2

2007-1444
position on the issue presented by the petition.      All parties agreed that the relief

requested by the petition would not alter the outcome of the appeal; we granted the

petition solely so that this court may issue a revised opinion; and we withdrew the

previous opinion at 532 F.3d 1338. Our revised opinion follows.

                                            I.

      A. The Endangered Species Act

      The Supreme Court explained in Tennessee Valley Authority v. Hill, 437 U.S.

153, 184 (1978) (“TVA”), that in passing the ESA Congress intended “to halt and

reverse the trend toward species extinction.” In keeping with this mandate, section

9(a)(1)(A) of the ESA makes it unlawful for any person (including a federal agency) to

import an endangered or threatened species into the United States. 16 U.S.C.

§1538(a)(1)(A). The ESA provides that its provisions shall be enforced by the Secretary

of the Interior (who has designated enforcement responsibility to the U.S. Fish & Wildlife

Service); the Secretary of Commerce (who has designated enforcement responsibility to

National Marine Fisheries Service); the Secretary of the Treasury (who has designated

enforcement responsibility to U.S. Customs and Border Protection); and the Coast

Guard. See 16 U.S.C. § 1540(e)(3) (“Any person authorized by the Secretary, the

Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard

is operating, to enforce this chapter may detain for inspection and inspect any package,

crate, or other container . . . upon importation or exportation. . . . Such person so

authorized may search and seize, with or without a warrant, as authorized by law.”).




                                            3

2007-1444
              In addition, the ESA provides additional constraints on all federal agencies.

Section 7(a)(2) mandates:

              Each Federal agency shall, in consultation with and with the assistance of
              the Secretary [of Commerce or the Interior], insure that any action
              authorized, funded, or carried out by such agency (hereinafter in this
              section referred to as an “agency action”) is not likely to jeopardize the
              continued existence of any endangered species or threatened species.

16 U.S.C. § 1536(a)(2).                                        Section 7(a)(2) “imposes a substantive (and not just

procedural) statutory requirement.”                                    Nat’l Ass’n of Home Builders v. Defenders of

Wildlife, 127 S. Ct. 2518, 2535 (2007).                                     As the Supreme Court explained in TVA,

“Section 7 . . . compels agencies not only to consider the effect of their projects on

endangered species, but to take such actions as are necessary to insure that species

are not extirpated as the result of federal activities.” TVA, 437 U.S. at 188 (emphasis in

original). 1

              B. Salmon and Steelhead Importation

              Included in the species that have been designated endangered or threatened are

twenty-six populations of West Coast salmon and steelhead (the “ESA-listed salmon”).

50 C.F.R. § 223.1102(c). Customs and Fish & Wildlife officials are stationed at the

                                                            
              1
               The regulations implementing section 7(a)(2) define “action” as “all
activities or programs of any kind authorized, funded, or carried out, in whole or in part,
by Federal agencies in the United States or upon the high seas” and explain that
“[e]xamples include, but are not limited to: (a) actions intended to conserve listed
species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses,
contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions
directly or indirectly causing modifications to the land, water, or air.” 50 C.F.R.
§ 402.02.



                                                                           4

2007-1444
ports of entry into the United States and are tasked with enforcing the importation ban

on the ESA-listed salmon. See 19 C.F.R. § 12.26(g)(1) (“All import shipments of fish

and wildlife subject to the regulations or permit requirements of the U.S. Fish and

Wildlife Service, published pursuant to the Endangered Species Act of 1973, 16 U.S.C.

§ 1531 . . . , shall be subject to examination or inspection by that agency’s officer

serving the port of entry, for determination as to permissible release or such other

disposition as he may direct.”).

       Despite these regulations, the complaint, which at this stage in the proceedings

we must accept as true, alleges that “[n]either the U.S. Customs and Border Protection,

the U.S. Fish & Wildlife Service, nor [Marine Fisheries] enforce the ESA prohibition

against the import into the United States of ESA-listed salmon caught in Canada.”

Compl. ¶ 35; see also Appellants Br. 7 (“Whether by conscious policy or neglect, neither

Customs nor Fish & Wildlife make any effort to implement the prohibition on imports of

threatened salmon.”). In addition, neither Customs nor Fish & Wildlife has consulted

with Marine Fisheries, pursuant to section 7 of the ESA regarding their lack of

enforcement of the prohibition against importing ESA-listed salmon from Canada into

the United States. Compl. ¶ 36.

       C.     Procedural History

       Plaintiffs are non-profit organizations dedicated to the protection of wild fishes,

included the ESA-listed salmon. They initially brought suit in the District Court of the

Western District of Washington, under the citizen suit provisions of the ESA and the

Administrative Procedure Act (“APA”). Salmon Spawning & Recovery Alliance v. Spero,



                                            5

2007-1444
No. C05-1878Z, 2006 U.S. Dist. LEXIS 28432 (W.D. Wash. May 3, 2006) (Salmon

Spawning I). Their two-count complaint alleged: (1) “By allowing continued import of

ESA-listed salmon and steelhead in violation of § 9 of ESA, the Defendants are

jeopardizing the continued existence of the listed salmon and steelhead in violation of

§ 7(a)(2),” Compl. ¶ 45 (the “section 9 claim”); and (2) that “it is arbitrary and capricious

and not in accordance with law, in violation of the Administrative Procedure Act . . . and

a violation of section 7 of the ESA, for the U.S. Customs and Border Protection and U.S.

Fish & Wildlife Service to continue to allow the import into the United States of ESA-

listed salmon caught in Canada without having completed the consultations required by

section 7 of the ESA,” Compl. ¶ 51 (the “section 7 claim”).

              The defendants moved to dismiss the complaint for lack of subject matter

jurisdiction. Salmon Spawning I, at *7. They argued that the Court of International

Trade had exclusive jurisdiction over the section 9 claim under 28 U.S.C. § 1581(i)(3)

because the claim arises out of a law providing for embargoes or other quantitative

restrictions on the importation of merchandise, and that accordingly, the Court of

International Trade could exercise supplemental jurisdiction over the section 7 claim. 2

The district court agreed and transferred the case to the Court of International Trade “so

that the [Court of International Trade] may determine its own jurisdiction,” including

whether to exercise supplemental jurisdiction over the section 7 claim. Id. at *27-29.



                                                            
              2
              The defendants also argued for dismissal on the grounds that the
agencies’ failures to enforce the ESA are not justiciable. The district court declined to
reach this ground.


                                                               6

2007-1444
              The Court of International Trade did not reach the issue of whether it was the

proper forum to adjudicate Salmon Spawning’s claims. Rather, it dismissed the case for

lack of subject matter jurisdiction on the grounds that no federal court had jurisdiction

over the claims. The court found that it was without jurisdiction over the plaintiffs’

section 9 claim because the exercise of the agency’s enforcement powers “lie solely

within the agency’s discretion.” 3 Salmon Spawning II, 477 F. Supp. 2d at 1308 (citing

Heckler v. Chaney, 470 U.S. 821, 830-31 (1985)).                   Furthermore, the trial court

concluded that plaintiffs had no standing to bring their section 7 claim.

              Plaintiffs appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (explaining that a

federal appellate court always has jurisdiction to determine whether the lower federal

court had jurisdiction).




                                                            
              3
                On a motion for reconsideration, the Court of International Trade rejected
plaintiffs’ arguments that the first claim of their complaint was not a claim under section
9, but rather a claim under the substantive provisions of section 7(a)(2). The court
noted the District Court for the Western District of Washington had also interpreted the
claim as a section 9 claim, and that “any confusion over the nature of the claim
stemmed from the complaint’s inartful drafting rather than the court’s misreading of the
text.” Salmon Spawning & Recovery Alliance v. Basham, No. 06-00191 (Ct. Int’l Trade
May 9, 2007) (Memorandum Order denying Plaintiffs’ Motion for Reconsideration). The
court also found that even “assuming arguendo that both Courts and Defendants
misconstrued Plaintiffs’ first claim, the claim would be subsumed by Plaintiffs’ second
claim, which asserts that Defendants must undergo the § 7(a)(2) consultation process.”
Id.


                                                               7

2007-1444
                                              II.

       A. Jurisdiction over the Section 9 Claim

       The district court and the Court of International Trade both interpreted the

plaintiffs’ first claim as stating a violation of section 9 of the ESA. Plaintiffs now argue

that the courts below were in error because the claim alleged a violation of the

substantive provisions of section 7(a)(2), not of section 9.          The language of the

complaint is ambiguous. See Compl. ¶ 45 (“By allowing the continuing import of ESA-

listed salmon and steelhead in violation of section 9 of the ESA, the Defendants are

jeopardizing the continued existence of the listed salmon and steelhead in violation of

§ 7(a)(2).”). However, the plaintiffs themselves left no doubt that they initially intended

to raise a claim under section 9. In their opposition to defendants’ motion to dismiss in

the district court, plaintiffs argued that “Plaintiffs’ allegation that Defendants are allowing

the import of listed salmon, thereby introducing the listed salmon into the United States,

is sufficient to state a claim for violation of ESA § 9,” citing as support ¶ 45 of their

complaint. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Complaint, Salmon

Spawning v. Spero, No. CO5-1878Z, at 22 (W.D. Wash. Mar. 8, 2006); see also id. at

19 (“Plaintiffs have alleged that Defendants ‘allow[] the continued import of ESA-listed

salmon.’ Complaint ¶ 45. This participation directly violates ESA section 9(a)(1)(A).”).

Given that the trial court’s interpretation of plaintiffs’ complaint is consistent with

plaintiffs’ own initial representations as to the meaning of the claim, we find no basis for

reversing the Court of International Trade’s interpretation.




                                              8

2007-1444
                To the extent that Salmon Spawning has brought a cause of action alleging that

defendants have violated section 9 by allowing the importation of ESA-listed salmon,

the district court properly dismissed the claim for lack of subject matter jurisdiction. 4 In

substance the claim alleges that the defendants have violated section 9’s prohibition on

the importation of endangered species by failing to enforce the ban. The Supreme

Court recognized in Heckler v. Chaney, 470 U.S. 821 (1985), that “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.” Id. at 831. Accordingly, an

agency’s decision not to undertake enforcement actions is “presumptively unreviewable”

under the APA. Id. at 832; see 5 U.S.C. § 701(a)(2) (precluding judicial review under

the APA when “agency action is committed to agency discretion by law”); Interstate

Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (explaining

that the unavailability of judicial review “to the extent that . . . agency action is

committed to agency discretion by law” is a “limitation to the general grant of jurisdiction

contained in 28 U.S.C. § 1331”). This presumption of unreviewability has not been


                                                            
              4
                The Court of International Trade chose to address issues of federal
subject matter jurisdiction prior to the question of whether the claim fell within its
exclusive jurisdiction under 18 U.S.C. § 1581. As both questions go to the court’s
jurisdiction, the district court had discretion to choose the order of the analysis. See
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (“While Steel Co. [v.
Citizens for Better Environment, 523 U.S. 83 (1998)] reasoned that subject-matter
jurisdiction necessarily precedes a ruling on the merits, the same principle does not
dictate a sequencing of jurisdictional issues. ‘[A] court that dismisses on . . . non-merits
grounds such as . . . personal jurisdiction, before finding subject-matter jurisdiction,
makes no assumption of law-declaring power that violates the separation of powers
principles . . . .’ It is hardly novel for a federal court to choose among threshold grounds
for denying audience to a case on the merits.”).


                                                               9

2007-1444
rebutted here. See Heckler, 470 U.S. at 832-33 (“[T]he presumption may be rebutted

where the substantive statute has provided guidelines for the agency to follow in

exercising its enforcement powers.”). Rather, the statute 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.” 16 U.S.C. § 1540(e)(3) (emphasis added). 5 Accordingly, plaintiffs’

section 9 claim is not justiciable under the APA.

              Nor do the citizen suit provisions of the ESA provide jurisdiction.   Section

11(g)(1)(A) of the ESA gives “any person” the right to bring suit “to enjoin any person,

including the United States and any other governmental instrumentality or agency . . .

who is alleged to be in violation of any provision of this Act or regulation issued under

the authority thereof.” 16 U.S.C. § 1540(g)(1)(A). As we have previously explained, this

provision “offers no independent jurisdiction to challenge a federal agency’s

implementation of the Act.” Earth Island Inst. v. Albright, 147 F.3d 1352, 1357 (Fed. Cir.

1998) (citing Bennett v. Spear, 520 U.S. 154 (1997)).               The Supreme Court has

explained that the ESA’s authorization in section 11(g)(1)(A) of suits to enjoin an agency

who is alleged to be in “violation” of any provision of the Act cannot be read to apply to


                                                            
              5
               There is no need to consider here the question left open in Heckler of
whether the presumption of unreviewability can be rebutted by a finding that “the
agency has ‘consciously and expressly adopted a general policy’ that is so extreme as
to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4. The
plaintiffs have not alleged that there was any express policy of non-enforcement.



                                                               10

2007-1444
challenges to the implementation or enforcement of the ESA. Bennett, 520 U.S. at 172-

74 (affirming that section 11(g)(1)(A) “is a means by which private parties may enforce

the substantive provisions of the ESA against regulated parties—both private entities

and Government agencies—but is not an alternative avenue for judicial review of the

Secretary’s implementation of the statute”). 6

              We therefore affirm the district court’s dismissal of the first claim of the plaintiffs’

complaint.



                                                            
              6
                Sections 11(g)(1)(B) and 11(g)(1)(C) do delineate two narrow grounds on
which an agency’s implementation of the ESA can be challenged under the ESA. It is
undisputed, however, that neither of these is applicable here. Section 11(g)(1)(C)
authorizes suits “against the Secretary where there is alleged a failure of the Secretary
to perform any act or duty under section 4 [16 U.S.C. § 1533] which is not discretionary
with the Secretary.” 16 U.S.C. §1540(g)(1)(C). See Earth Island Inst., 147 F.3d at
1357. Not only has there been no allegation of a failure under section 4, which relates
to the listing of species as endangered, but also plaintiffs acknowledge that defendant’s
enforcement decisions are discretionary.
        Section 11(g)(1)(B) authorizes suits “to compel the Secretary to apply, pursuant
to section 6(g)(2)(B)(ii) of this Act, the prohibitions set forth in or authorized pursuant to
section 4(d) or section 9(a)(1)(B) of this Act with respect to the taking of any resident
endangered species or threatened species within any State.” This provision is only
applicable to suits alleging a failure of the Secretary to apply section 6(g)(2)(B)(ii), which
authorizes the Secretary to apply the prohibition on “taking” an endangered species
under section 9(a)(1)(B) to activities within a State, under certain emergency situations.
Notably, not only does section 11(g)(1)(B) require an allegation of a violation of section
6(g)(2)(B)(ii), both it and section 6(g)(2)(B)(ii) explicitly apply only to the prohibition on
domestic “taking” of endangered species under section 9(a)(1)(B). See Earth Island
Inst., 147 F.3d at 1357.
        As the Supreme Court has concluded, the narrowness of sections 11(g)(1)(B)
and 11(g)(1)(C) demonstrates a clear intention of Congress to preclude judicial review
under the ESA for other failures of an agency to enforce the ESA, such as the failure to
enforce the import ban of section 9(a)(1)(A) at issue here. See Bennett, 520 U.S. at
173 (“§ 1540(g)(1)(C) . . . would be superfluous—and worse still, its careful limitation to
§ 1533 [section 4] would be nullified—if § 1540(g)(1)(A) permitted suit against the
Secretary for any ‘violation’ of the ESA.” (emphasis in original)).


                                                               11

2007-1444
               B. Jurisdiction over the Section 7(a)(2) claim

              Plaintiffs’ second claim alleges that defendants violated the APA and section 7 of

the ESA by allowing the importation of ESA-listed salmon without completing the

consultation required by section 7. In other words, this count of the complaint alleges a

procedural violation of section 7(a)(2). The district court dismissed the claim for lack of

standing.  

              To establish standing under Article III of the Constitution, a plaintiff must show

that (1) it suffered an injury-in-fact that is (2) fairly traceable to the challenged conduct of

the defendant and (3) likely redressable by a favorable judicial decision. Figueroa v.

United States, 466 F.3d 1023, 1029 (Fed. Cir. 2006) (citing DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 342 (2006)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992). 7

              The Court of International Trade held that plaintiffs’ section 7 claim did not satisfy

the “redressability” prong of the standing analysis. The trial court concluded that there


                                                            
              7
                 In addition to this “irreducible constitutional minimum of Article III
standing,” Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1331
(Fed. Cir. 2008) (internal quotation marks omitted), the plaintiff generally must also
establish prudential standing by showing that the “interest sought to be protected by the
complainant is arguably within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 153 (1970); see also Inv. Co. Inst. v. Camp, 401 U.S. 617,
620 (1971); Canadian Lumber Trade Alliance, 517 F.3d at 1331. Here there is no
question that prudential standing requirements have been met. First, to the extent that
the suit is properly brought under the citizen suit provision under the ESA, the Supreme
Court has held that its broad provisions expand the zone of interest to “all persons.”
Bennett, 520 U.S. at 164-66. And even if the suit is only proper under the APA, the
plaintiffs’ interests in protecting the endangered and threatened salmon is at the heart of
the interests that section 7(a) of the ESA is designed to protect.


                                                               12

2007-1444
was no obligation under section 7 for the federal defendants to consult regarding their

decision not to enforce the endangered salmon ban because the consultation

requirement is only triggered by affirmative action, not a failure to act. Accordingly, the

court reasoned that any injury suffered by the plaintiffs was not capable of being

redressed. In reaching this result, the trial court misinterpreted the redressibility prong

of the standing analysis. Standing requires that the injury “is likely to be redressed by a

favorable decision.”                             Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982) (emphasis added). 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. See Litecubes, LLC v. N. Light Prods.,

Inc., 523 F.3d 1353, 1360 (Fed. Cir. 2008) (“Subject matter jurisdiction does not fail

simply because the plaintiff might be unable to ultimately succeed on the merits.” (citing

Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998))). 8




                                                            
              8
              The Ninth Circuit has repeatedly faced the issue of whether certain
conduct by an agency qualifies as agency action under section 7(a)(2). It has
consistently dealt with such claims as raising a question on the merits not as a question
of standing. See, e.g., Cal. Sportfishing Prot. Alliance v. FERC, 472 F.3d 593, 596 (9th
Cir. 2006).


                                                                   13

2007-1444
              Under a proper analysis, the plaintiffs have sufficiently alleged the elements of

standing to preclude dismissing the case for lack of standing based on the pleadings. 9

Plaintiffs have alleged, inter alia, that their members frequent the habitat areas of ESA-

listed salmon for recreation and attempt to observe the endangered salmon spawning.

Compl. ¶ 3. The Supreme Court has recognized that injury to such interests can form

the basis for an injury-in-fact. See Lujan, 504 U.S. at 562-63 (“[T]he desire to use or

observe an animal species, even for purely esthetic purposes, is undeniably a

cognizable interest for purpose of standing.”); Animal Legal Def. Fund v. Quigg, 932

F.2d 920, 936 (Fed. Cir. 1991) (“The interests alleged to have been injured may reflect

aesthetic, conservational, and recreational as well as economic values.” (quoting Sierra

Club v. Morton, 405 U.S. 727, 738 (1972))).                         Plaintiffs allege that the aesthetic,

                                                            
              9
             What is required to establish standing depends on the stage of the
proceeding. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). As the Supreme
Court has explained:

       Since [the elements of standing] are not mere pleading requirements but
       rather an indispensable part of the plaintiffs’ case, each element must be
       supported in the same way as any other matter on which the plaintiff bears
       the burden of proof, i.e., with the manner and degree of evidence required
       at the successive stages of the litigation. At the pleading stage, general
       factual allegations of injury 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. In
       response to a summary judgment motion, however, the plaintiff can no
       longer rest on such mere allegations, but must set forth by affidavit or
       other evidence specific facts, which for purposes of the summary
       judgment motion will be taken to be true. And at the final stage, those
       facts (if controverted) must be supported adequately by the evidence
       adduced at trial.
Id. (internal citations and quotation marks omitted). We make no judgment as to
whether plaintiffs will be able to satisfy their burden of proving standing should this case
proceed to summary judgment or trial.


                                                               14

2007-1444
recreational, and environmental interests of their members are being adversely affected

and irreparably injured by defendants’ failure to prevent the importation of endangered

salmon because this failure has jeopardized the continued existence of the listed

salmon. 10 Compl. ¶ 6. At this early stage in the proceedings, this allegation is sufficient

to establish an injury-in-fact fairly traceable to defendants.

              Moreover, plaintiffs’ section 7 claim is attempting to enforce a procedural right.

Such rights can be asserted “without meeting all the normal standards for redressability

and immediacy,” as long as “the procedures in question are designed to protect some

threatened concrete interest of [the plaintiff] that is the ultimate basis of his standing.”

Lujan, 504 U.S. at 572 n.7, 573 n.8. Thus, we agree with the Ninth Circuit that “to

establish standing by alleging procedural harm, the members must show only that they

have a procedural right that, if exercised, could protect their concrete interests and that

those interests fall within the zone of interests protected by the statute at issue.”

Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005)

(emphasis in original), overruled on other grounds sub nom. Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007).                    The consultation

requirements of section 7 are designed to make certain that every federal agency takes

“whatever actions are necessary to ensure the survival of each endangered and

threatened species.” Sierra Club v. Glickman, 156 F.3d 606, 616 (5th Cir. 1998) (citing

                                                            
              10
               According to the complaint, many of the ESA-listed salmon spawn in
Washington’s Columbia River and Puget Sound, and then mature fish migrate north to
Canadian and Alaskan waters. A significant number of these salmon are caught during
their return migration back to the United States in Canadian commercial and sport
fisheries, including ones catering to United States residents.


                                                               15

2007-1444
TVA, 437 U.S. at 183-84); see also TVA, 437 U.S. at 185 (“[T]he legislative history

undergirding § 7 reveals an explicit congressional decision to require agencies to afford

first priority to the declared national policy of saving endangered species.”).      Thus,

because 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. In

such a situation, a claim alleging a violation of the procedural requirements of section

7(a)(2) satisfies the redressability prong of standing. See Defenders of Wildlife, 420

F.3d at 958 (concluding that the standing requirements for procedural harm were met in

a section 7 claim because “the use of improper section 7 consultation . . . lessens the

likelihood that the impact of the proposed action on listed species and their habitats will

be recognized and accounted for in making the transfer decision”); Glickman, 156 F.3d

at 616 (finding plaintiffs had standing to bring a procedural claim under section 7(a)(2)

because “the procedures in question were designed to protect Sierra Club’s threatened

concrete interest in this case”). We, therefore, conclude that the trial court improperly

dismissed the case for lack of standing. Cf. Bennett, 520 U.S. at 162-71 (holding that

plaintiffs who have economic and other interests in water from the Klamath Irrigation

Project had standing to bring a claim under the APA alleging that a biological opinion




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2007-1444
issued by the Fish & Wildlife Service regarding the Klamath Project violated section 7 of

the ESA). 11

              Because the Court of International Trade dismissed the case for lack of standing,

it never considered whether plaintiffs’ section 7 claim fell within the exclusive jurisdiction

of the Court of International Trade. Nor did the District Court for the Western District of

Washington ever evaluate whether the Court of International Trade had independent

jurisdiction over section 7 claims. Rather, the district court found that the Court of

International Trade would have discretion to exercise supplemental jurisdiction over the

section 7 claim on the basis of the section 9 claim.

              Because supplemental jurisdiction cannot be exercised when a court does not

have original jurisdiction over at least one claim in the suit, 28 U.S.C. § 1367(a) (“[I]n

any civil action of which the district courts have original jurisdiction, the district courts

shall have supplemental jurisdiction over all other claims that are so related to claims in

                                                            
              11
                The Heckler presumption of unreviewability does not preclude subject
matter jurisdiction over plaintiffs’ procedural section 7(a)(2) claim. If the consultation
requirements of the section apply, they are mandatory. Thus the allegation that the
agency has failed to meet its duty to consult is a proper “failure to act” claim under the
APA. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (holding that a
claim under the APA for a “failure to act” requires there to be a “discrete agency action
that it is required to take” (emphasis in original)). Moreover, the discretionary nature of
an agency action does not preclude the applicability of section 7. Indeed, the Supreme
Court recently upheld implementing regulations that state that section 7(a)(2) only
applies to discretionary agency actions and affirmed that section 7(a)(2) “applies to
every discretionary agency action.” Nat’l Assoc. of Home Builders v. Defenders of
Wildlife, 127 S. Ct. 2518 (2007). We note, however, that contrary to plaintiffs’
arguments, National Association of Home Builders does not address what constitutes
agency action under section 7(a)(2). The reasoning of Heckler may be relevant to that
question, which goes to whether plaintiffs’ section 7 claims states a cause of action
upon which relief can be granted.



                                                               17

2007-1444
the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.”); see Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes that it lacks subject-

matter jurisdiction, the court must dismiss the complaint in its entirety. . . . In contrast,

when a court grants a motion to dismiss for failure to state a federal claim, the court

generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C.

§ 1367 . . . .”), and because we affirm the Court of International Trade’s dismissal of the

section 9 claim for lack of subject matter jurisdiction, we need not consider and,

therefore, do not decide whether the Court of International Trade could have properly

exercised supplemental jurisdiction over Salmon Spawning’s section 7 claim under 28

U.S.C. § 1367(a). 12

              Instead, for the Court of International Trade to have jurisdiction over the current

action, plaintiffs’ section 7 claim must fall within the court’s exclusive jurisdiction under

28 U.S.C. § 1581.                             There are two possible sources of Court of International Trade

jurisdiction for the claim: (1) § 1581(i)(3), which provides the Court of International

Trade with exclusive jurisdiction over civil actions that “arise[] out of any law of the

United States providing for . . . embargoes or other quantitative restrictions on the

importation of merchandise for reasons other than the protection of the public health or

safety” and (2) § 1581(i)(4), which provides the Court of International Trade with


                                                            
              12
             On petition for rehearing, defendants argue that 28 U.S.C. § 1367(a) does
not apply to the Court of International Trade. Because the issue has not been fully
briefed and does not impact the outcome of the present appeal, we decline to take on
the issue here.


                                                                 18

2007-1444
exclusive jurisdiction over civil actions arising from “administration and enforcement with

respect to the matters” referred to in § 1581(i)(3). See Sakar Int’l Inc. v. United States,

516 F.3d 1340, 1346 (Fed. Cir. 2008) (“[S]ection 1581(i)(4) as it relates to section

1581(i)(3) provides the Court of International Trade with jurisdiction over cases that

arise out of any law providing for the administration and enforcement of an embargo.”).

       While an appellate court has “inherent jurisdiction to determine whether a lower

tribunal had jurisdiction,” Int’l Custom Prods. v. United States, 467 F.3d 1324, 1326

(Fed. Cir. 2006), it also has discretion to remand issues, even jurisdictional ones, to the

trial court when that court has not had the opportunity to consider the issue in the first

instance. See United Food & Commercial Workers Union, Local 919 v. Centermark

Props. Meriden Square, Inc., 30 F.3d 298, 307 (2d Cir. 1994) (remanding “the issue of

federal question jurisdiction to the district court for consideration in the first instance”

and noting that this course of action was “particularly appropriate” when the district court

never considered the issue and “the issue has been given a somewhat cursory and

confused treatment on appeal”); Mitchell Food Prods., Inc. v. United States, 43 Fed.

Appx. 369, 369 (Fed. Cir. 2002) (“Because the [Court of International Trade] did not

definitively resolve the standing and real party in interest objections, . . . we vacate and

remand for a determination of these issues in the first instance.”); Cohen v. World Omni

Fin. Corp., 254 Fed. Appx. 790, 793 (11th Cir. 2007) (“[W]e remand [the case] to the

district court to consider its subject matter jurisdiction.”); Tagayun v. Lever &

Stolzenberg, 239 Fed. Appx. 708, 708 (3d Cir. 2007) (“We will vacate the order of

dismissal and remand with instructions to the District Court to consider in the first



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2007-1444
instance whether it had subject matter jurisdiction and personal jurisdiction to consider

Appellants’ claims.”); cf. Chen v. Ashcroft, 378 F.3d 1081, 1088 (9th Cir. 2004) (“When

confronted with a novel legal issue, we could decide the case based on application of

law to the facts. However, we believe the better course in this case is to remand to the

agency for its consideration of the issue in the first instance.”).

              The issue of whether plaintiffs’ section 7 claim falls within the Court of

International Trade’s exclusive jurisdiction, or instead should be brought in a district

court, is one of first impression for this court and it raises difficult, novel issues

concerning the scope of the Court of International Trade’s jurisdiction. The parties have

not briefed the issue, 13 neither the district court nor the Court of International Trade

addressed the issue in the instant case, and it does not appear that the Court of

International Trade has ever had the opportunity to consider such an issue in prior

cases. Under these circumstances, we believe that the better course of action is to

remand the case to the Court of International Trade to determine in the first instance

whether the section 7 claim falls within its exclusive jurisdiction.     In making this

determination, the court will need to consider whether the suit “arises out of any law of

the United States providing for . . . embargoes or other quantitative restrictions on the

importation of merchandise” or for the “administration and enforcement with respect” to

                                                            
              13
               Neither plaintiffs nor defendants briefed the issue as they are currently
both in agreement that the case is properly before the Court of International Trade,
plaintiffs having abandoned their initial position that the proper forum for the case was
the District Court for the Western District of Washington. The parties’ agreement on the
issue, however, is not dispositive. Courts have an independent obligation to determine
their own jurisdiction. See Dowd v. United States, 713 F.2d 720, 726 (Fed. Cir. 1983)
(“Lack of jurisdiction may not be waived by the parties nor ignored by the court.”).


                                                               20

2007-1444
such embargoes under § 1581(i), and also whether there is a conflict between § 1581(i)

and section 11 of the ESA which vests jurisdiction over citizen suits brought pursuant to

the ESA with the district courts. 16 U.S.C. § 1540(g) (“The district courts shall have

jurisdiction, without regard to the amount in controversy or the citizenship of the parties,

to enforce any such provision or regulation, or to order the Secretary to perform such

act or duty, as the case may be.”).

              If the Court of International Trade determines that the section 7 claim does not

fall within its jurisdiction, it should transfer the case back to the District Court for the

Western District of Washington. If it concludes that it does have jurisdiction over the

claim, it should proceed with further proceedings consistent with this opinion. 14

                                                               III.

              For the foregoing reasons, the Court of International Trade’s dismissal of

plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack




                                                            
              14
               The trial court’s conclusion that there was no obligation under section 7 for
the federal defendants to consult regarding their decision not to enforce the endangered
salmon ban because it does not constitute agency action under the statute, while not a
question of standing, goes directly to the merits issue of whether plaintiffs have stated a
cause of action for which relief can be granted. Although the parties have briefed the
issue, we do not believe it is appropriate for us to address whether a dismissal for
failure to state a claim on this ground would be proper until after there has been a final
decision as to whether this case was properly transferred to the Court of International
Trade. If the Court of International Trade does not have jurisdiction, then it will be for the
District Court of the Western District of Washington and the Ninth Circuit to determine
whether section 7(a)(2) applies to the conduct complained of here.



                                                               21

2007-1444
of standing is reversed, and the case is remanded to the Court of International Trade to

determine whether the surviving claim falls within its exclusive jurisdiction.


            AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

No costs.




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2007-1444
